Early Nomination Win by Kerry
Guarantees Politics to Dominate Balance of 2nd Session
Michael Scott, J.D., Director
Governmental and Legal Affairs
Having trounced his nearest competitor on “Super
Tuesday,” March 2, Senator John Kerry (D-MA)
returned to the Senate later in the month with the
Democratic presidential nomination under lock and
key. Since an incumbent Republican President is
seeking a second term in November without a challenger,
Senator Kerry’s surprising early selection
by the Democrats essentially rendered irrelevant
the summer party conventions and teed up what everyone
agrees will be a well-financed, protracted and ugly
political war right up to election day.
Although the airwaves for all Americans will overflow
with political attacks and counterattacks, the fallout
of Senator Kerry’s early selection will be
nowhere more apparent than inside the Beltway, where
each party’s dominant legislative agenda will
be to make the other party and its standard-bearer
look bad in the eyes of the voters.
Harbingers of the war abound as Washington turns
to spring. Senate Minority Leader Thomas A. Daschle
(D-SD) announced in late March that he and his colleagues
would block all nominations requiring Senate approval
until the President promised to forgo any more recess
appointments to the federal judiciary and until
nomination of Democratic representatives to various
federal agencies and boards were brought to the
floor. Senate Majority Leader Bill Frist (R-TN),
on the other hand, took to the floor to question
the motives and veracity of former Bush counterterrorism
adviser Richard A. Clarke after he alleged that
the White House had ignored the al Qaeda threat
before September 11.
As this column is written, the jury is out on whether
House and Senate conferees will be able to create
a FY 2005 budget. Both bodies have passed their
own version of a budget resolution calling for relatively
modest spending increases. The Senate version contains
a “pay as you go” provision which requires
that any tax cut must be offset by revenue increases
or spending decreases; this provision is vigorously
opposed by the White House. A stalemate could mean
that there will be no budget resolution (in itself
an indication of the failure of the GOP congressional
leadership to lead) and could open the door to politically
important proposed amendments by the Democrats when,
as expected, tax legislation is taken up later in
the session.
Nowhere, however, has political posturing been more
evident than in connection with the brouhaha over
the public disclosure by Rick Foster, the Centers
for Medicare & Medicaid Services’ (CMS’)
chief actuary, that he had advised the White House
and then-CMS Administrator Tom Scully, prior to
passage of the Medicare bill last November, that
the bill would over 10 years cost $139 billion more
than the $400 billion figure projected by the Congressional
Budget Office (CBO). Mr. Foster further said that
Mr. Scully had threatened to fire him if he disclosed
this information to Congress where fiscal conservatives,
especially in the House, were already agonizing
over the cost of the bill as estimated by the CBO.
House Democrats gleefully leaped into the breach
and demanded everything from a re-vote on the bill
to a criminal investigation. GOP advocates countered
that estimates of the future cost of the bill were
notoriously difficult to determine, and anyway,
the only number that mattered, under congressional
policy, was the CBO number. Almost lost in the background
noise is the fact that among those regularly reviewing
governmental estimates of future Medicare costs,
CMS’ estimates are known almost always to
exceed those of CBO, and beyond that, the estimates
of both entities were always too low in retrospect.
From the political perspective, however, the Foster
revelation and resulting debate served to undercut
— just as the Democrats intended — the
election-year advantage the President and his congressional
allies hoped to establish in putting the promise
of a 2006 Medicare drug benefit in place.
The month-long congressional brouhaha over alleged
Administration suppression of the facts as to the
actual cost of the Medicare bill tended to deflect
public attention from the ominous report of the
Medicare trustees, made public on March 23, that
the Medicare Part A Trust Fund would run out of
sufficient money to pay claims by the year 2019,
seven years sooner than previously projected. The
trustees estimated that two of those seven years’
acceleration of insolvency were due to estimated
costs of the new drug benefit.
Just as significant for physicians, the trustees
noted that Part B spending, which is funded by beneficiary
premiums and by general revenues, has risen more
than 10 percent a year for the past four years and
is expected to grow 6.6 percent a year until 2013.
Translated into practical terms, this projected
growth rate — combined with recent stop-gap
actions by Congress to avoid negative updates for
physicians — is expected to result in 5-percent
annual negative updates for physicians through 2012
under the current update formula.
Confronted with this dire estimate, organized medicine
has already embarked upon coordinated efforts to
persuade Congress to junk the current Medicare update
formula in favor of an approach that does not threaten
serious access problems for Medicare beneficiaries.
At the outside, these efforts include an approach
to CMS to take steps to avoid inappropriate determination
of physician services in excess of target under
the current formula, which, if successful, would
reduce the budgetary cost of a change in the update
formula itself..
OB/ER
Bill Fails
On April 7, the Senate GOP leadership did not succeed
in its effort to invoke cloture on debate on S.
2207, a professional liability reform bill designed
to limit noneconomic damages in professional liability
awards related to obstetric or emergency room care.
The vote was 49-48 in favor of cloture; 60 affirmative
votes are required under Senate rules. Majority
Leader Bill Frist (R-TN) expressed the intent to
bring a more expanded bill, dealing as well with
rural and inner-city care, before the Senate in
the near future.
Society
Joins Pain Coalition
Last month ASA’s application for membership
in the Pain Care Coalition, a Washington, D.C. advocacy
group, was formally accepted by the coalition’s
existing members. Existing members of the
coalition are the American Academy of Pain Medicine,
the American Pain Society and the American Association
for the Study of Headaches.
The coalition has been active for a number of years
in encouraging and supporting legislation of interest
to pain care practitioners. It is currently
actively supporting the National Pain Care Policy
Act (H.R. 1863) sponsored by Congressman Michael
J. Rogers (R-MI). This bill was previously endorsed
by ASA.
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