Shakespearean Health Reform

With the expected passage of legislation by the Senate Finance Committee this week, Federal health reform prepares to move into the next phase, i.e. merger of bills in the House and Senate followed by a Conference Committee to meld those two versions.  While this “process” may seem very straight forward, it probably will have subplots as intriguing and complex as many of Shakespeare’s plays.  So below, are some highlight of what may unfold in the coming weeks, (and months), as health reform legislation is finalized and then implemented… perchance.

To Reconcile or Not to Reconcile, That is the Question
The Senate Democrats had set a deadline of October 15th, after which they may use the rules of Reconciliation to pass health reform legislation.  The appeal of Reconciliation is that it only requires 51 votes to pass legislation and not the 60 under normal rules to stop a filibuster.  The downside is that it also places limits on the content of the legislation because all the provisions must affect federal spending or risk being deleted.  In addition, Reconciliation rules also shorten the budget window from 10 years to 5. Of course, the Democrats are not required to use Reconciliation after October 15th – it just becomes an option.

Neither a Borrower nor a Lender Be
Much of the deliberations and political angst about the overall structure of the health reform legislation revolves around the projected impact of health reform legislation on Federal spending and private sector healthcare costs.  In addition, the President has declared that health reform legislation shouldn’t add to the long-term Federal deficit.  The good news is that the Congressional Budget Office’s preliminary assessment is that over the 2010-2019 period the Finance Committee’s bill will reduce the Federal deficit by $81 billion – although those saving almost entirely result from how the provisions produce secondary saving in Social Security spending and revenues.  However, as history has shown, these are projections, not guarantees – despite the media and various stakeholders declaring that “according to the CBO”, (or others), the bill “will” do such and what to costs, coverage, the debt and the deficit, etc. In addition, as the bills get merged and the legislative language refined, the CBO’s cost estimates can change.

Double, Double, Toil and Trouble; Fire Burn and Cauldron Bubble
This may be the mantra for opponents of health reform who are trying to brew both policy and political problems for the Democrats in Congress and the President by creating media and grassroots fires out of legislative smoke and mirrors. Overall, they may be cooking up a politically potent witches’ stews out of “eye of newt and toe of frog, wool of bat and tongue of dog” and other yummy stuff in their attempt to tilt the political and fund-raising environments in their favor for 2010 and 2012.

The First Thing We Do, Let’s Kill All the Lawyers

(From Henry VI, Part 2 Act IV, Scene 2)
The first thing we do, let’s kill all the lawyers.

Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o’er, should undo a man? Some say the bee stings:
but I say, ’tis the bee’s wax; for I did but seal
once to a thing, and I was never mine own man since.

While this discussion certainly shouldn’t be taken literally in the modern context, this exchange does reflect some of the challenges that await the implementation of any health reform legislation – particularly related to Medicare, or any provisions that interact with state laws, such as insurance regulation.  As a democracy, the United States is founded upon extensive rules of law, and implementing changes to those laws generally requires public review and commenting on proposed rules and regulations, which are then subject to revision before becoming effective.  This process takes a long time – often years – and even longer when implementation requires contracting with private entities to actually carry out the new laws.  And even more time may pass before laws become effective if any parts are challenged in a law suit – an outcome that is very possible if any industry or group of stakeholders sees itself as losing money or benefits under the new law, since even a losing suit can delay a bad outcome… which also gives them time to seek a legislative remedy… which would further delay any changes.  This is the price of a transparent democratic process. And while killing all the lawyers, (and writers of laws and regulations), might speed up the process, it would also likely lead to a poorer representational system, and a less fair process.

Nobly Onward Into an Undiscovered Country
So given all these contentious steps in the process, what are the Democrats to do? As with Hamlet’s predicament, Democrats in the House of Representatives may face the choice between life for their most progressive priorities – including a public plan option – and the political death of some of their more moderate and junior members who represent purple districts inhabited by voters who look askance at new government programs. As a modern day political Hamlet might ponder:

‘Tis it nobler in the Democrats’ minds to suffer
The slings and arrows of outraged Republicans,
Or to take arms and pens and voices against a sea of contentious voters
And by composing compromise, end the impasse?
To try: to weep; to cajole; No more;
And by try, seek to end the false niceties
The Blue Dog’s heart-aches, and the thousand unnatural media shocks
Enabling a consummation that devours all
To hope: perchance to dream: ay, there’s the rub;
For in that dream of enactment, what ills may come
When we have shuffled out of this policy coil,
And onto the parchment scribbling of rulemaking and implementation,
Must give us near election-year pause: there’s the respect
That makes calamity of incumbency for some, and such short tenure for others;
For who would bear the whips and scorns of seniority, or cut short that dream for others?
The pangs of disprized Members from a law delayed,
The intolerance of voters for officeholders, and the spurns
That patients endure of the unworthy delays,
When he himself might try his diagnosis make
With a bare nogin? Who would care for the bill’s bill,
To grunt and sweat under a weary public debt,
But that the dread of nothing after defeat,
The undiscover’d country of private life, from whose uninsured lands
Few travelers return, puzzled by paper and will
And makes us rather bear those ills we have
Than fly to others that we know not of and cannot afford?
Thus conscience of defeat does make cowards of us all;
And thus the native hue of resolution to use reconciliation
Is sicklied o’er with the pale cast of thoughts of loss,
And enterprises of great change and moment
With this regard, election year currents look far awry,
And could lose the name of action for us and all.

(With apologies to William Shakespeare)

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