The 'do-nothing' 105th Congress and its record on health care
By Robert B. Doherty
When Congress finally adjourned in late October, critics accused it of being a "do-nothing" Congress. The label certainly seemed to apply to Congress' record on health care issues. Congress' decision to table patient protection and anti-smoking legislation suggested that it would be remembered more for what it didn't do than for what it did.
There are times, however, when getting Congress to do nothing produces the best of all possible outcomes. When it came to the Lethal Drug Abuse Prevention Act (S. 2151/H.R. 4006) and Medicare "user fees," for example, doing nothing was exactly what the doctor ordered.
The Lethal Drug Abuse Prevention Act
The goal of S. 2151/ H.R. 4006 was to take away the DEA license of any physician who prescribed pain medication with the intent of helping a patient commit suicide. ACP-ASIM opposed the bill because even those physicians who appropriately treated pain would risk being investigated for the simple act of prescribing narcotics. For this reason, the bill would produce a chilling effect that would create unnecessary pain and suffering for patients.
The House and Senate leadership considered the bill a top priority. It had the support of the right-to-life movement, and the House and Senate Judiciary committees approved the bill within weeks of it being introduced. It seemed almost certain that the full House and Senate would pass the bill.
ACP-ASIM never conceded defeat, however. Along with the AMA and the American Cancer Society, we helped organize a coalition of 57 influential health-related organizations that opposed the legislation. At ACP-ASIM's request, hundreds of internists called members of Congress to register their opposition to the bill. Influential newspapers editorialized against it.
As more lawmakers heard the arguments against the bill, support in Congress faltered. On three separate occasions, the House leadership was forced to pull the bill from consideration rather than risk defeat on the floor.
In the closing days of the congressional session, proponents made a last-ditch effort to bury S. 2151/H.R. 4006 in an omnibus appropriations package that had to be enacted in order to avoid a government shutdown. (Legislators often bury controversial legislation in "must-pass" budget packages to push through bills that would otherwise fail.) ACP-ASIM and other members of the coalition immediately alerted members of Congress to the gambit, and many responded that they would not approve the appropriations bill if S. 2151/H.R. 4006 was included.
The congressional leadership got the message, the bill was dropped from the appropriations package, and Assistant Majority Leader Don Nickles (R-Okla.), the chief sponsor of S. 2151, conceded that it was dead for the year. He promised, however, to try to introduce it again in the next Congress.
Another bad idea that didn't survive the congressional session's closing days was the administration's proposal to charge physicians to care for Medicare patients.
The administration's budget proposal for fiscal year 1998 would have charged physicians a $100 fee to enroll in Medicare, a $25 annual re-enrollment fee, and $1 for each paper or "unprocessable" claim. Although the proposal would have cost physicians hundreds of dollars, the issue was not only about money. The idea that physicians should pay HCFA for the privilege of accepting discounted fees to take care of Medicare patients struck most physicians as ludicrous at best and insulting at worse.
ACP-ASIM was a leading participant in an anti-user fee coalition. We also organized our own grassroots campaign against the measure. Our efforts paid off when Congress decided to leave user fees out of the final appropriations package.
Once again, the decision by Congress to "do nothing" about the administration's user fee proposal was the best possible outcome for internists.
Where Congress should have done more
On other issues, however, Congress' failure to do anything to improve health care was not good for internists.
Earlier in the session, it looked like Congress would agree on legislation to protect patients from abusive practices by managed care organizations. Democrats and Republicans alike said that some legislation was needed. Both parties agreed that any bill should include a "prudent layperson" standard for emergency treatment, internal and external appeals rights, and requirements that plans disclose information needed to help consumers make informed choices.
But that is where the agreement ended. Senate Republicans wanted the protections to apply only to Americans who are insured under ERISA. Senate Democrats insisted that the bill should include everyone. House Republicans were willing to grant certain protections to all insured Americans but would not accede to Democratic demands that health plans be held liable for decisions that could harm patients. Despite the fact that polls continued to show strong support for patient protection legislation, Congress ultimately adjourned for the year without passing even a modest bill.
Tobacco legislation was another area where Congress failed to do anything to improve public health. Senator John McCain (R-Ariz.) fashioned a bipartisan bill that would restrict tobacco advertising to minors, raise taxes on cigarettes, force the industry to pay billions to support anti-tobacco educational campaigns, and provide limited legal protection to the industry from liability suits. The tobacco industry balked at the legislation, however, and mounted a massive lobbying campaign to depict the bill as a "tax increase" on consumers. The industry's tactics worked, and Congress adjourned without voting on a tobacco bill.
ACP-ASIM can take pride in the fact that Congress did not pass the Lethal Drug Abuse Prevention Act or user fees. What can be more important than stopping legislation that would hurt internists and their patients?
But on many other issues, "doing nothing" is not good enough. Congress needs to finish the business of enacting meaningful patient protection and tobacco control legislation. Much more can and should be done to improve care of the dying. And the fact that Congress has done little to reduce the number of uninsured Americans is a national tragedy.
The fact that the 105th Congress failed to adequately confront such issues is unfortunate. ACP-ASIM will do everything it can to compel the next Congress to tackle these issues-and other genuine problems-in our health care system. At the same time, we will once again urge Congress to do nothing, if what they propose to do will make things even worse for patients and their physicians.
Robert B. Doherty is ACP-ASIM's Senior Vice President, Governmental Affairs and Public Policy.
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