ASA September 2007 Newsletter

The Tortured Path of Legislation

Ronald Szabat, J.D., LL.M.
Executive Vice-President – External Affairs and General Counsel

hatever you learned in high school civics, forget it. Or better yet, use that earlier learning, however dimly recollected, as only some indication of “how a bill becomes law.” Why? Because the legislative process is not linear.

True, it was somewhat easier to follow during the recent Republican-controlled years in the U.S. House of Representatives, when committees of jurisdiction were largely ignored and bills were simply taken straight to the House floor; but that streamlining of the process assumes too much familiarity.

Even my own daughter, who just earned top marks in a high school sophomore advanced placement government course, still has endless questions for me. Where, she asked (as my wife picked me up at midnight in front of the House Longworth Office building after grueling all-day committee markups), did the members of Congress physically do most of their work? And as we drove away to a weekend business meeting at that ungodly hour, my wife and I, both former Hill staffers, simply smiled and started explaining.

With apologies for these personal references, these questions, your questions and the unique way that our federal democracy makes law remind me that it is frequently a highly foreign process to anyone outside immediate lobbying circles.

So, why is all this “process talk” important right now? Because major legislation that will shape the course of government funding for Medicare and a 10-year reauthorization of the State Children’s Health Insurance Program (CHIP) is making its way in a tortured path through the House and Senate and into a joint House-Senate conference committee. And, all the while, President Bush says that he will veto whatever Congress sends him, meaning Congress will have to go back and start again.

Back to basics, there are three congressional committees that handle Medicare legislation: House Ways and Means, which has jurisdiction over all of Medicare, both Part A (hospitals) and Part B (physicians and other health care providers); House Energy and Commerce, which has jurisdiction over Medicare Part B and such huge programs as Medicaid and CHIP; and the Senate Finance Committee, which has broad sway over all of Medicare and these other major federal health programs. Of special note, Ways and Means and Finance also are the sole tax-writing committees in Congress. When organized medicine lobbies, it therefore spends an inordinate amount of its time working with and trying to influence the chairs and members of these committees.

All things being equal, if the majority of these folks are not with us, especially the Democrats who now control both Houses, then our hopes and aspirations will never be realized. That is why, for example, you will not currently find information on our Web site on well-meaning bills by House Republicans to abolish the sustainable growth rate (SGR) formula. Under current committee and House rules, there is simply no way for those bills to move forward. As with any Congress, our principal efforts must be in building support with our friends on the majority side of the aisle for legislation that can and must move forward, while also keeping well-traveled open channels to the minority. That’s not partisan politics on our part; it’s just the way it is.

Regarding the CHIP and SGR bills, high theater has prevailed in its recent consideration. In late July, for example, House Republicans, angry about their minority status and lack of ability to influence these bills in a substantive way, literally delayed committee proceedings in the House Energy and Commerce committee for many hours by insisting on a verbatim reading of the 500-page bills in committee, and they were able to do so multiple times. Ultimately that committee simply gave up and allowed nearly the same bill to work its way through the Ways and Means Committee, later through the House Rules Committee (where further changes were made mostly behind closed doors), and onto the House floor before the five-week congressional recess. At the same time, at the beginning of August, the Senate endured endless procedural obstacles in moving its CHIP bill forward.

Ultimately, movement of these huge, costly and controversial bills is very important to every anesthesiologist and physician in America. Unless Congress acts, anesthesiologists and all of medicine face a 10-percent cut in Medicare payments beginning in January 2008 and a 15-percent cut from the current baseline in 2009 due to the unfair SGR formula. The House bills under consideration would provide a two-year positive Medicare physician payment update and would set the stage for a repeal of the SGR. Such movement is highly consistent with ASA’s public policy goals.

Consequently, ASA and all of medicine are heavily involved in shaping bill content and seeing that legislative movement is forward, not backwards or sideways as is always possible in the nonlinear world of legislation. The path ahead will surely take us late into the year. Please stay tuned for opportunities to help advance our ASA causes. For up-to-date information on the details and progress of these bills, please visit our Web site at www.ASAhq.org/government.htm#alerts.