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Life Health > Health Insurance > Your Practice

A Cautionary Tale

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Huge amounts of rhetorical energy bad-mouthing the health care reform legislation are being expended, and various means of repealing it are pushing forward even as the rolling-out of the bill continues apace. But the repeal process may yet be a rockier one than House Republicans expected.

The repeal effort was turned over to the House Judiciary Committee as part of the new House Republican majority’s decision to parcel out to various committees the responsibility for crafting bills designed to kill the bill through a thousand cuts.

The committee reported out such legislation in February with H.R. 5, the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011. The legislation imposes a $250,000 cap on subjective, noneconomic damages; a collateral source rule reform allowing evidence of outside payments to be made in court; a ban on subrogation by collateral sources; a fee schedule for attorney contingency fees; and periodic payments of future damages.

Final action on the bill was delayed for several weeks in February because both Democrats and conservative Republicans voiced objections to the legislation based on concerns it would impinge on state’s rights. The panel ultimately decided to report the bill to the House floor as written, and let the battle over the state’s rights issue be waged there. But, it didn’t happen.

Then the Health Subcommittee of the Energy and Commerce Committee, one of three committees with oversight over health care in the House, held a hearing on the bill under what is called a ‘sequential referral.” In other words, the sequential hearing on legislation, considered a priority by House Republicans may imply concerns by the GOP leadership over whether to risk a debate on the House floor that would expose divisions within the Republican caucus.

That debate may become even more contentious now that a respected group of state legislators are weighing in on the issue. In a letter sent to the E&C Committee last week, officials of the National Conference of State Legislators beseeched the panel to drop efforts to impose a “one-size-fits-all” standard on medical liability through federal legislation. The letter said that, “adoption of a one-size-fits-all approach to medical malpractice envisioned in H.R. 5 and other related measures would undermine that diversity and disregard factors unique to each particular state.”

Meanwhile, as its main Senate supporter, Sen. Mike Johanns, R-Neb., noted after the bill passed the Senate that the bill is a cautionary tale on repeal initiatives.

“This was a provision in the health care law that pretty quickly everybody agreed was foolish,” he said. “And yet we had over a dozen votes to get to this point. … Can you imagine what kind of battle you would have on a key part of the health care bill? Once something becomes law in the federal government, it is very, very hard to amend it or tweak it unless there is unanimous agreement.” Indeed.


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