Procedure Will Determine Parity and HC Reform

It is difficult to overemphasize the extent to which political procedures determine political results. Although they are poorly understood and often hopelessly arcane (the "how a bill becomes a law" chart that high schoolers learn are is only the tip of the iceberg), the procedure by which a policy is considered and implemented profoundly affects the resulting law or policy. Political procedures are the rules of the game. Many of the most skilled lawmakers are not so much policy wonks as experts in the procedure of their respective legislative body--they know how to work the process to get the results they want, and they recognize the limits that are imposed from the very beginning.

Three recent procedural developments have taken place in the last week, two with significant implications for health care reform and one for parity:

• On April 28, long-time senator Arlen Specter from Pennsylvania switched his party identification from Republican to Democrat, citing the right-ward drift of the Republican Party (Specter is a centrist on many issues) and the primary challenge he faced from former GOP congressman Pat Toomey in 2010. Specter's defection gave the Democrats 59 of the 100 Senate seats. The U.S. Senate is a "supermajoritarian" body, in which 60 votes are required to pass most legislation (60 votes are not needed to pass a bill per se, but that's the minimum number of votes needed to stop a filibuster, a procedural device that allows a group of Senators to halt Senate business indefinitely--in practice, bills with less than 60 supporters are often not even brought up for a vote). In other words, the Democrats are now only one vote shy of a filibuster-proof majority (including non-Democrats who caucus with the Dems, Joe Lieberman of Conn. and Bernie Sanders of Vt.). But the Senate is still missing one member from Minnesota--former comedian and Democrat Al Franken leads incumbent Republican Norm Coleman by about 300 votes in the last still-undecided election from November 2008. Coleman's suffered a string of legal defeats that make it unlikely he will prevail in the recount, though it's not clear how long he will be able to postpone Franken's seating.

In any case, Specter's decision to join the Democrats makes it far easier for the Democrats to set the legislative agenda for an issue like health care reform. It reduces--though doesn't eliminate--the incentive for Democratic leaders to accede to Republicans' proposals. It increases the chance of a broader, more ambitious health care reform bill passing Congress.

• On April 29, Congress approved President Obama's $3.4 trillion budget. The budget included a controversial procedural tactic called "budget reconciliation." Budget reconciliation was originally intended to make it easier for the Senate to reduce deficits by eliminating the filibuster option on set areas of policy named in the reconciliation agreement (but of course it's consistently been used by both parties for other purposes).The 2010 budget included a reconciliation directive to pass health care reform legislation by October 15. In other words, if health care reform isn't passed by October 15 by normal congressional procedure, the special budget reconciliation process will go into effect, limiting the time for debate and prohibiting filibusters.
  

Congressional leaders have said that they hope to pass health care reform without resorting to reconciliation procedures. However, the agreement provides Democrats with an important safety net in case bipartisan negotiations break down. (Even with Sen. Specter and would-be-Sen. Franken in their ranks, some Democrats may cross lines and vote against a health care reform bill, depriving them of the filibuster-proof majority.) It also provides added incentive for Senate GOP lawmakers to help pass a bill before October, when they risk losing almost any influence in the final bill.

So circle October 15 on your calendars--it could turn out to be a date that goes down in health policy history.

• The importance of procedure doesn't end with a bill's passage. When the Wellstone-Domenici Parity Act was passed last October, the Departments of Labor, Treasury and Health and Human Services were tasked with writing administrative law--regulations--implementing the legislative language. The regulations are supposed to be promulgated by October 3, 2009 (although, with great foresight, the Parity Act included a provision saying that the law would go into effect in 2010 whether or not regulations had been written). Last week, the three Departments published a Request for Information (RFI) to aid them as they write regulations. This RFI will eventually be followed by a request to comment on draft regulations themselves some time before October.
  

The RFI can be found online here. It asks informational questions about what financial and treatment limitations plans impose, how out-of-network coverage for addiction is different from other out-of-network coverage,what information about denials are provided to beneficiaries, etc.

If you or your employer are interested in responding to the RFI, you are encouraged to do so. The better the regulation-writers understand the current insurance landscape, the better they can craft effective regulations. If you have questions about the RFI or about your responses, please feel free to comment on this post or e-mail me at daniel@naadac.org.