How Health Legislation Happens, Influence & the Hierarchy of Stakeholders

The Basics of Legislative Process: “I’m just a Bill…” -School House Rock

Want to know a not so well kept secret? Legislators are just people like you and me. Luckily, the idea for a bill can also come from anyone. Anyone, including the President of the United States (or POTUS), a trade organization, a business or any private citizen, (depending on the attention they command from the legislator in question), can help prepare and even help draft a bill. Why do you need to go through a legislator? Because only legislators can introduce bills into Congress and allow for the process of turning into a law to begin.

Here are the basics steps from there: after the initial idea gets put on paper, an elected official (or more likely their underpaid staffer) finalizes the draft of the bill and sponsors (or co-sponsors) it. The bill is then introduced for consideration by the legislative body of which that legislator is a part. For instance, a congressional representative introduces the bill by submitting it to the House of Representatives through the House Clerk who then gives that bill a number and a committee is assigned to study the issue. That committee may then refer the bill to a subcommittee. At this point, the committee or subcommittee requests reports from government agencies, such as Centers for Medicare and Medicaid (CMS), and begins to hold hearings so that experts and other interested parties (including Jane Q. Citizen, with your impassioned personal frustrations with the healthcare system) may offer testimony as part of public hearings, on behalf of, or against the measure. This information is used to revise or, “mark up,” the bill. The committee then recommends passage, aka reporting the bill out of committee, further revision, or laying it aside, aka tabling the bill.

Once the bill is ‘reported out of committee,’ it goes to the floor of the House or Senate for debate and approval. It is at this point that a bill is amended, and thus may have additional content added to it. Once it is approved, it moves to the other Chamber of Congress for similar consideration. This results in two versions which require reconsideration, which is why you may have heard the term “sister bill” in reference to two versions of a bill that are simultaneously introduced in the House or Senate to speed a process which is painfully slow if methodical regardless. After the two versions are completed, the measure is negotiated between legislators of each chamber and the compromise is summarized in a Conference Report which creates a common version of the measure. If that finalized version of the legislation is passed by both houses, is sent to the POTUS for signature into law or a veto.  In other words, the bill will not become law depending on who occupies the main seat in the Oval Office, so timing is everything.

There are also variations on this legislative process such as Reconciliation in which a caucus of legislators from both chambers with a common goal may propose a concurrent resolution on a bill in terms of spending or taxation. Parts of the Affordable Care Act fall into this category. However, this process also generally requires consideration in various committees of each chamber prior to making it to the floor for a vote. In other words, you get the idea, it leaves room for many stakeholders to influence the process and that degree of influence varies broadly.

The Basics of Lobbying: “Hey, must be the money!” –Ride Wit Me by Nelly.

Lobbying is a process by which individuals, trade organizations, private businesses and frankly, anyone, can attempt to influence the decisions or perspectives of legislators. Theoretically, influencing decisions does not require money. Practically speaking, almost nothing else does. Consensus has long been that money is not only the leading factor in influence peddling with politicians, but the overriding force that defines all legislation, healthcare included of course. It is a major reason attempts to dismantle the ACA gained traction despite popularity with patients and that proposals for universal healthcare are similarly blocked. Legislators are squarely in the crosshairs of industry lobbying. For example, in recent years, the top fifty industry groups spent almost three quarters of a billion dollars on lobbying congress and the federal government. Among the top five biggest spenders were Blue Cross Blue Shield, the American Hospital Association and the Pharmaceutical Research and Manufacturers of America. Suffice it to say, it is an uphill battle for the concerns of the average citizen to be heard above all of this noise. When it comes to the needs of the most economically disadvantaged citizens requiring medical care and a way to pay for it, you better find allies.

Regardless of the flaws in our current system of healthcare provision, the rhetoric of repeal and replace of the Affordable Care Act (ACA), reflects something different than the needs of patients with preexisting conditions or the concerns of clinicians caring for them. The average citizen should question why insurers are spent over $6 million in the first three of 2017 on influencing regulations to stabilize the health insurance market by preserving cost-sharing subsidies while congress worked to eliminate the ACA.

The Effect of Stakeholder Influence at the State Level

In Maryland, Delegate Joseline Pena-Melnyk of District 21 and State Senator Brian Feldman District 15, have announced their intention to enact a Health Insurance Down Payment plan that requires each citizen to pay a penalty, in place of the federal mandate, which is slated to be eliminated by the end of 2019. The proposal would use these funds to purchase a health insurance plan from private insurers for all Marylanders. Del. Pena-Melnyk, is a criminal lawyer with a strong back ground in Criminal Justice, Criminal Defense and Democratic Activism and serves on the Maryland House Health and Government Operations Committee. Sen. Brian Feldman, a lawyer with a strong background in government and economics formerly with the US Dept of Justice who now serves as Senate Chair of the Joint Committee on Federal Relations. The major insurers in the State of Maryland are CareFirst BlueCross Blue Shield and Kaiser Mid-Atlantic. I leave it to readers to research any connections that may exist.

We already went over the fact that health insurance companies are lobbying aggressively to preserve cost-sharing subsidies. What do patients get in return? Does everyone really benefit from entering into a contract for coverage of health care costs? Is it the same as saying we will have equal access to health care for all? Take a look at prior posts on how health insurance works, then consider the following: comprehensive universal health care coverage for every resident. Maryland Senator Paul G. Pinsky District 22, has recently proposed SB1002, calling for the creation of a public corporation to do just that. The legislation is modeled on the Healthy California single payer system without premiums, copayments or deductibles introduced in 2017. The fiscal effects of that plan or the one SB1002 will have is challenging to gauge as any comprehensive single-payer system requires cost controls in order to experience cost savings and those have not been made obvious to the public thus far.

Cost containment will continue to be a tremendous challenge as a result of the complexity of protecting all stakeholders. One major obstacle to passage of these measures will of course be the elimination of incentive of for profit insurers so we should expect robust resistance from the largest lobbyists cited above. The bill proposes coverage on a fee-for-service basis without cost sharing by patients creating another challenge in terms of price setting. Neither legislation seems to include medical malpractice tort reform which is essential as one would predict increase usage will be concurrent with cost savings predicted as result of expanded access to preventative care. It is early in the process, so that many voices can still be heard. Since you now all know the basics of the legislative process, lobbying and stakeholder influence, the time to have your interests represented and start asking questions, is now.



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