March 23, 2012

Medicare

This week the House considered H.R. 5: Protecting Access to Health Care Act. This legislation repeals the Independent Payment Advisory Board (IPAB) and pays for that repeal by placing arbitrary caps on medical malpractice claims.

Although I oppose IPAB, I could not vote for this bill because of the medical malpractice provisions attached to it.

Regular readers of this newsletter know that I am a strong supporter of health care reform and voted for the Affordable Care Act in March of 2010. You may also recall that I had a number of concerns about certain aspects of that bill, particularly with regard to the ways it would impact Massachusetts. One of my concerns had to do with the creation of an Independent Payment Advisory Board (IPAB).

IPAB was created to set Medicare reimbursement rates. Traditionally, Medicare payments are based on many factors including efficiency, complexity of medical issues, cost of living in different regions, and, crucially for Massachusetts, whether the provider also bears costs associated with medical education for the future doctors and engages in medical research. Some argue that Medicare should focus ONLY on cost containment without regard for all the other factors that affect the cost of care and that have been traditionally considered. The IPAB was proposed by those who favor a bottom-line only approach to Medicare. The idea is to empower an appointed board to make cuts that an elected official would not support — and this is the basis of my concern.

Supporters of IPAB argue that Congressional authority is not undermined because IPAB cuts can be stopped with a majority vote of both the House and Senate. But the members of IPAB are appointed by the President. Clearly, any President is likely to support suggestions from his or her own appointees and would veto Congressional action against the appointed board. Therefore, it would require the vote of two thirds of Congress to override the proposals of IPAB. This reality underlies my greatest concern: there may be future Presidents who do not support Medicare or the Affordable Care Act as I do.

Despite my serious concerns over IPAB, I felt that I had to vote against HR 5 and here’s why. H.R. 5 also contains medical malpractice legislation that pre-empts state law in all 50 states by capping all non-economic medical malpractice damages at $250,000 whenever a patient is harmed as a result of any health care related action, including problems with medical devices and drugs or mistakes made by doctors or hospital staff. Punitive damages are permitted only with proof that someone acted “with malicious intent to injure claimant” or “deliberately failed to act to prevent unnecessary injury claimant was substantially certain to suffer.” They are also capped at $250,000.

H.R. 5 fails to take into account the level of seriousness of medical errors committed. Even the most egregious cases, such as a transplant patient dying because he or she received an organ with the wrong blood type, are subject to a cap. Interestingly, this bill does not cap economic damages, which are determined based on the lifetime earning potential of the patient. This is troubling and, I believe, unfair because, for example, if two people suffered the exact same medical malpractice, the CEO of a major company would receive much more in economic damages than a bank teller with six young children left behind. A lower wage earner suffering from serious injuries would not require less costly medical care, yet that person would receive far less than a higher wage earner with identical injuries. There is no question that reasonable malpractice reform is needed, but this unfair bill is not the answer.

The bill also establishes a three-year statute of limitations on all “health care lawsuits”. So if a suspected medical malpractice incident does not manifest itself for three years and one day, that patient has no recourse. And the scope of H.R. 5 is far too broad because it applies not just to medical malpractice cases but to all “health care lawsuits”. As a result it shields entities like insurance companies, drug companies and HMOs by also making them subject to the $250,000 caps.

I think it’s worth noting that I am one of 15 Democrats (including Barney Frank) who supported Health Care Reform and who also became co-sponsors of the original, bipartisan bill that would have simply repealed IPAB (H.R. 452). I am certain that a clean IPAB repeal bill would have received several dozen votes from good, solid, progressive Democrats and most of the Massachusetts delegation.

After the addition of a divisive and overly broad proposal to deny most people the ability to seek reasonable compensation for malpractice, only two of the original Democratic co-sponsors voted for H.R. 5. I am personally offended that we were denied a clean vote on an important issue on which there had been broad bipartisan agreement. I voted NO on HR 5 and the entire vote is recorded below:

Republican Budget Resolution

This week, Budget Committee Chairman Paul Ryan released the budget resolution for FY 2013. It represents the direction that House Republicans wish to go when it comes to federal spending and sets spending limits for the upcoming fiscal year. Simply put, it’s the wrong direction. The resolution goes well beyond what was agreed to in the Budget Control Act (BCA), which already significantly reduced spending. Over ten years, the budget reduces non-defense spending by more than $1 trillion, and this is on top of the reductions already agreed to in the BCA. Such dramatic cuts will be devastating. Moreover, while many programs would endure harmful cuts, Defense Department funding would increase next year. The Congressional Budget Office estimates that this budget sets the United States on a long-term path that reduces federal funding for discretionary programs to their lowest levels since before World War II.

Just like last year, the budget dismantles the existing Medicare program and replaces it with a voucher program. It targets Medicaid by cutting $810 billion in funding over ten years and turning it into a block grant program. States are struggling and simply will not be able to make up this shortfall. The result will be drastic cuts in services to our most vulnerable – seniors in assisted living, low income children and persons with disabilities.

Of course, the budget also repeals the Affordable Care Act. This is not a piecemeal approach, but a wholesale repeal, including provisions that prevent insurance companies from denying coverage based on pre-existing conditions and provisions that prevent insurance from imposing lifetime and annual coverage limits.

The budget reduces funding for research and development and for transportation. This is shortsighted and will impact job creation. We should be directing more money toward research and development, which will lead to the technologies of the future. We should also be investing more, not less, money in our infrastructure. Roads, bridges and transit systems all need maintenance and replacement — they don’t last forever. If we don’t maintain and modernize our infrastructure, we are not investing in our economy.

The cost of a college education is already far too high, yet this budget puts college even further out of reach for our young people. It reduces funding for higher education by $166 billion over ten years. Congress has already paid for inflationary increases to Pell Grants. This budget eliminates that and freezes the maximum Pell Grant at 2012 levels. It also does away with income-based repayment plans. These are crucial accommodations that help borrowers who are not earning high salaries manage their debt and pay it off responsibly.

Despite the fact that our federal deficit is enormous, this budget reduces the top tax rate for corporations and individuals from 35% to 25%, and it makes the Bush tax cuts permanent. Making those tax cuts permanent will cost $5.4 trillion. The Tax Policy Center estimates that this budget would give those earning more than $1 million a year an average tax cut of more than $125,000.

We simply cannot reduce the deficit on spending cuts alone. We must have a balanced approach and this budget resolution could not be further from balanced. The House will vote on it next week.

Other Recent Votes

Earlier this week the House considered H.R. 2087: To remove restrictions from a parcel of land situated in the Atlantic District, Accomack County, Virginia. The National Park Service has a program that permits the transfer of federal land to local governments so that it can be used for recreational purposes. The land cannot be sold by the local government or used for non-public purposes. Once the land in question is no longer used for recreational purposes, it must be transferred back to the federal government. H.R. 2087 seeks to take 32 acres of federal land in Virginia and simply give it to the local community so that an office park can be developed. It sets a troubling precedent for federal land transfers and, because it only applies to a specific parcel, should rightly be classified as an earmark, a practice that Republican leadership says it has eliminated. I voted NO. H.R. 2087 passed and the entire vote is recorded below:

What’s Up Next Week

The House is scheduled to consider the Republican Budget resolution as well as take up a short term extension of the transportation reauthorization bill.