Monty Python Hospital Reform
“In the worst cases, we can perform a Total Cashectomy”:
Self-Congratulatory Housekeeping
Last week’s post about the retracted rule on advance directives got some nice attention and comments, thanks to a link from Austin Frakt. The post has now been republished at Care and Cost, a new forum for healthcare writing—a bloggregation, if I may—hosted by Brian Klepper. Check it out.
(And yes, obviously I’m going to need a more professional mugshot for this sort of thing.)
Nudging Health Reform
Richard Thaler, behavioral economist and Maharishi of Nudge, had a good column in the NYT over the weekend. Thaler shares three ways that choice architecture could be used to facilitate implementation of health reform:
- seamless, automatic enrollment in an exchange plan whenever someone loses employer coverage
- Paul Starr’s idea for replacing fines with 5-year forfeitures of subsidies for those who do not comply with the coverage mandate
- making PPACA funds for states conditional upon states’ enacting an insurance mandate
Both #2 and #3 are viable workarounds if the Supreme Court decides that the individual mandate is not kosher under the Commerce Clause.
King for Yesterday
I somehow failed to notice that yesterday was MLK Day. For the past couple of years I’ve observed the day by reading over a great speech or two, but this year I was so oblivious that it didn’t even cross my mind to reflect on it. Luckily, Lee at the Riot Trail reflected enough for the both of us. Lee shares thoughts on Taylor Branch’s trilogy of the King years. I especially liked this bit:
King spent as much time, if not more, arguing and persuading other black people that nonviolence was the way to go as he did with whites over Civil Rights. Many of those fighting for Civil Rights had a hard time accepting King’s vision for affecting change. Towards the end of his life especially King’s ideas were trending out of fashion, in favor of a more militant approach (Black Panthers, etc.).
But King was right, and it’s amazing that he held sway for so long, given what a hard sell it was. By convincing so many people to follow his vision he averted what was at the time actually a very real possibility: a full scale race war. I don’t think many people understand how close we came to that catastrophe. We were on the verge.
MLK knew what a disaster that would be. But he also knew that for a century white people had been content to push race problems ‘out of sight, out of mind.’ Change would have to be forced. Nonviolence was a way of putting the race problem front and center in the minds of the public, without starting a race war.
I’m generally averse to “great man” theories of history. I think most history is the product of social and economic forces, and that we use “great men” because they make for a better story. Certainly the Civil Rights movement was a force far beyond MLK’s powers. But in this case I do believe he shaped the movement in an absolutely crucial way. He helped channel the anger and frustrations of black people into actions that actually made the world a better place, at a time when things could have so quickly spiraled out of control.
And, ultimately, he did not defeat his enemies. He redeemed them.
The observation about MLK the great man is one of those things that’s so obviously true that it might never occur to you and, therefore, might not inform your view of history as much as it should. But Lee is right, Martin Luther King, Jr. had some very special qualities that were very important to modern American history. Maybe it’s too much to say we wouldn’t have had a civil rights era without him, but I have little doubt that he rescued us from some seriously bad counterfactual histories that we should all be glad didn’t happen.
Why Did the Administration Retreat on Advance Directives?
Just days after taking effect on Jan. 1, 2011, new Medicare regulations authorizing reimbursement to physicians for end-of-life care planning were retracted by the administration. Austin Frakt, pleading for someone to explain the “Medicare end-of-life planning flip-flop,” asks: “Did the Administration follow proper procedure or not?” The stated reason for the retraction was that the rule had been adopted without sufficient notice or opportunity to comment on the issue. I think the legal question, now moot of course, was a close call, but the administration was right to retract. There’s a fairly strong case that notice was inadequate and, therefore, that the rule was procedurally defective.
Background
During the debate leading up to passage of the Affordable Care Act (ACA), a proposal for Medicare to cover end-of-life care planning became a lightning rod for conservative opposition, which branded the proposal as the first step on the road to death panels. The provision was dropped, and the ACA as finally enacted on March 23, 2010 (and amended March 30) did not include Medicare coverage of EOL planning.
On July 13, 2010, the Centers for Medicare and Medicaid Services (CMS) published a Notice of Proposed Rulemaking in the Federal Register (75 FR 40246 [pdf]), announcing its intent to promulgate a new Medicare physician fee schedule implementing, among other things, Annual Wellness Visits established by the ACA. The Notice included the text of the proposed rules and invited public comments on them. There was no mention of reimbursement for advance-care planning in the Notice, and it was not included in the Proposed Rule.
In the ensuing comment period, health professionals urged CMS to include payment for voluntary advance-care planning as part of Medicare’s new Annual Wellness Visits. CMS agreed. Citing evidence that advance planning yields improvements in the quality of EOL care and that patients would welcome the opportunity to discuss such plans with their doctor, the agency incorporated payments for voluntary advance-care planning into its Final Rule, published Nov. 29, 2010 (75 FR 73170).
The provision went largely unnoticed in the media until reported by Robert Pear in the NYT on Dec. 25. Controversy then started brewing, and detractors and supporters alike criticized the administration for trying to slip the provision into the regs on the sly in spite of its notorious failure to pass Congress. The Final Rule took effect Jan. 1, 2011. Its repeal was announced just days later, effective Jan. 10, 2011 (76 FR 1366 [pdf]).
Discussion
The rulemaking process is governed by §553 of the Administrative Procedure Act, which requires federal agencies to provide notice of proposed rulemaking and an opportunity for interested persons to submit written comments. The agency must address major issues raised by commenters and explain its decisions in a “concise general statement” published with its final rule, 30 days before the rule takes effect.
There is no hard-and-fast, bright-line standard as to what constitutes adequate notice. But the purpose of the notice requirement is clear enough: to give “interested persons” (stakeholders, the public) an opportunity to participate in the process. Typically notice is given—as it was by CMS in this instance on July 13—by publishing an invitation to comment along with the full text of a proposed rule in the Federal Register. The agency may of course decide to change the proposed rule in response to public comments. But if it modifies the proposed rule, it must consider whether stakeholders had adequate notice of the final, modified rule.
The answer to that depends on how substantially the rule is changed. Courts considering such cases have invoked various “tests” to gauge the adequacy of notice: whether the final rule is a “logical outgrowth” of the proposed rule; whether the final rule “substantially departs” from the terms of the proposed rule; whether the notice was misleading with respect to the changes incorporated in the final rule.1 At an abstract level, the inquiry here is about the fairness of the process. If the court is persuaded that, all things considered, the rule’s challengers should have anticipated the changes, then it will likely find notice adequate.
So, should opponents of Medicare coverage for EOL planning have anticipated that CMS would include such coverage in its Final Rule? Well, there are arguments in both directions. You might argue: No. There was no mention of advance-care or end-of-life care planning in the Proposed Rule, and a similar proposal was conspicuously removed by Congress from the ACA itself. And so, even if it is within CMS’ substantive authority to adopt a rule covering advance-planning payments, it would not be fair or reasonable to expect all stakeholders to have anticipated that such a rule would be adopted without further opportunity for public comment.
Or you could argue: Yes. The terms of the Final Rule should have been anticipated and were indeed a “logical outgrowth” of the Proposed Rule covering preventive services in the Annual Wellness Visit. For one thing, Medicare already covers such voluntary advance-care planning as part of the “Welcome to Medicare” physical exam. Other similarities between the two visits should have alerted interested parties to the possibility that advance planning would be incorporated into the new rules.
So, it’s debatable whether CMS’ rule was procedurally defective. But under the circumstances, I think retraction was prudent. The rule probably would have faced legal challenge, with results uncertain. By retracting the rule promptly, the administration can face the problem head on (or not), on its own terms. The defect can easily be cured with another round of notice and comment, and there is no reason the rule could not be adopted once more in identical form within a few months. CMS appears to have all the substantive authority it would need to institute the rule.
But, apart from any strategic calculus, there’s also something to be said for making good on our commitments to procedural fairness and openness, commitments which at times must trump the pursuit of substantive policy objectives. Supporters of the policy may be dismayed at the administration for yielding to politics over evidence. I sympathize, to a degree. Particularly with regard to substance, it is distressing to see death-panel nonsense accorded any respect. But the procedural issues raise special concerns. The whole administrative apparatus of government is organized around more or less vague, aspirational objectives. Administrative procedure is also vague and aspirational, but it is the best means we have devised to apply neutral, ex ante constraints on the bureaucracy. It represents our best efforts at ensuring that public policy is informed by evidence and expertise and is responsive to public needs and interests.
Procedural fairness is instrumental to substantive ends, but there are times when it is itself more about politics than evidence. This is one of those times.
- See, e.g., Chocolate Mfrs. Assn. v. Block, 755 F.2d 1098 (4th Cir. 1985). In that case, the Fourth Circuit invalidated a rule removing “flavored milk” from the WIC nutritional assistance program. The court found notice insufficient because, while the agency specifically invited comments about sweetened cereals and other foods, it did not do so with regards to flavored milk, which had long been included in the program for women and non-infant children. [↩]
Alabama’s Medicaid Forms
I lived in Alabama for a two-year stretch in the Aughts, and I don’t usually accentuate the positive when I think about its state government. So I feel I should acknowledge when it does something smart.
The feds gave states extra Medicaid money based on how many public health insurance eligible children they could sign-up. Alabama was the big winner thanks to some pre-filled forms. The NYT reports:
Alabama will receive a $55 million bonus, more than twice as much as any other state, for having 133,000 more children on its Medicaid rolls than projected by a formulated base line, according to the Department of Health and Human Services. The 15 states that will receive bonuses reported a total of 874,347 children above the baseline, which factors in population growth and, to some degree, demand driven by the economy.
To make enrollment easier, Alabama has eliminated asset tests for children, ended requirements for an in-person interview and allowed children to remain eligible for a year without renewal. It also sends out renewal forms with blanks filled in when data is known, and allows applicants to verify their forms with an electronic signature. The state has adopted “express lane eligibility” so that Medicaid application processors can use income findings from other safety net programs to validate eligibility.
Via Nudge blog. That money is from the CHIP Reauthorization of 2009, not the ACA, in case you were wondering. Under the ACA, HHS has awarded Alabama $17.1 million in grants, according to healthcare.gov.
Death in the Air, Death Everywhere
Liz Condo/The Advocate, via Associated Press
The U.S. Geological Survey’s National Wildlife Health Center reports that the birds tested negative for pesticides, though tests for other toxins and diseases are still pending. From the USGS-NWHC website:
While large-scale bird die-offs are always a concern, they are not that unusual. USGS records list at least 16 events involving more than 1,000 black birds or starlings over the past 30 years. The majority of these cases were poison related, although weather-related trauma was also the cause of some events.
Hundreds more blackbirds were found dead in Louisiana (pictured above), just 300 miles south of where the thousands were found in Arkansas. It’s thought that the Louisiana birds were also spooked by fireworks and then, somehow, ran into powerlines on the side of the road. (Hmmmm, don’t know about that one. Live wires?)
Presumably similar explanations apply in Kentucky, Tennessee, and (no doubt) elsewhere where large numbers of birds have recently fallen off their perches.
NYT quotes Melanie Driscoll, a biologist with the Audubon Society, for some statistical perspective:
“Five billion birds die in the U.S. every year,” Ms. Driscoll said, “so statistically some have to die at the same time.” The population of red-winged blackbirds is more than 200 million, she said, and they fly in flocks of 100,000 to 2 million. “So 5,000 sounds like a lot of birds, but really it is a relative number.”
Meanwhile, in the Old World, hundreds of turtle doves have been found dead in an Italian town near Bologna. Apparently they met their fate at some irresistible sunflower seeds, eating so much that their livers and kidneys were poisoned.
Evil pigs have not been incriminated as yet in any of the recent events.
Superminority Report
Yesterday was the opening day of the 112th Congress, and a group of Democratic Senators has unveiled a package of proposals (pdf) to reform the Senate Rules. The reforms fall short of a direct attack on the filibuster—i.e., on the 60-vote supermajority requirement to end debate—but they do represent an effort to curtail excesses of the minority’s exploitation of the rules for obstructionist ends.
Via Greg Sargent, here’s a summary of the reforms:
Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed
Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.
Eliminates Secret Holds
Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.
Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority
Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.
This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution — it guarantees the minority the right to offer germane amendments.
Talking Filibuster: Ensures Real Debate
Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.
Expedite Nominations: Reduce Post-Cloture Time
Provides for two hours of post-cloture debate time for nominees. Post cloture time is meant for debating and voting on amendments — something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.
Jonathan Bernstein is thoroughly underwhelmed:
The specific details . . . promise no significant change from the newly-instituted 60 vote Senate.
Secret holds? If holds are a problem (and in general I’m only really concerned about them on nominations), then the problem is the hold itself, not secrecy. Making holds public won’t change anything. There’s also a strange, from my point of view, emphasis on forcing “live” filibusters, which (without further rules changes) will also change nothing. Minority party Senators are, in most cases, perfectly happy to be identified with their opposition to what the majority wants. Assuming otherwise, as these reforms seem to do, is a real misunderstanding.
The reform proposal avowedly does not change the 60-vote cloture threshhold. Even under reforms much more aggressive than these, an intense and determined minority would retain the ability to obstruct the majority’s agenda. It is a big disappointment for reformers that the Udall proposal does not include a requirement, such as was included in previously floated proposals, that the minority must continually occupy the floor with some minimum number of Senators (say, twenty) to stave off cloture.
But even some modest reforms might influence behavior on the margins. At least it is possible that Senators in the minority will find it personally inconvenient to bear the opportunity cost of occupying the floor, which might in turn cut down on obstruction of trivial matters. As David Waldman writes:
If the price is high enough, it can discourage the obstructionist strategy of blanket filibusters on nearly all legislation just to waste time by shifting the burden a filibuster places onto the Senators who want to conduct one, rather than putting it on those who’d seek to stop it.
The problem is, the price just isn’t high enough under the Udall resolution. It is not a great burden for the minority if only one Senator at a time must be on the floor to keep the filibuster alive. But the cost for the majority in terms of lost time is much greater. Not to mention the fact that the minority will always win in the end.
As for ending secret holds, it might be the case that making individual Senators own up to their holds would impose some extra cost on them in the form of being increasingly pestered by journalists, constituents, and colleagues over particularly obnoxious and unjustifiable holds. But requiring Senators to go on the record with holds isn’t very likely to curtail their use. After all, it is already the case that someone who is a U.S. Senator must stand up and publicly object in order to place a hold on proceedings. Ultimately, the problem for this kind of limited reform, it seems, is that the obstructionists are not ashamed of their obstruction. They are proud of it. And they probably won’t get any flak from their supporters for it, even if they have to dodge a few more annoying questions than before.
It seems to me that the package has two purposes: (1) to “prove the concept” that reform is possible by establishing a precedent that the majority may change the rules and thereby implicitly threatening the minority that, if they continue with blanket obstructionism, the majority may respond by ending the filibuster altogether; and (2) to test whether changing marginal incentives on individual Senators’ behavior has any effect on the degree of minority obstruction. If it does, then that would point the way to future rule changes that could preserve the filibuster as a last resort for intense and unified minorities, while deprecating it as a tool of ordinary obstruction and delay.
I wouldn’t go so far as to say I think it will work. But I do think it’s reasonable to try.
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