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How are They Going to Attempt to Pass Health Reform

Editor’s note: The big fear of the House Democrats: if the Senate requires the original bill to be signed into law before it will vote on the side car, is it possible that the side car does not get passed — or it gets changed and sent to the House for another vote and it doesn’t agree, etc. and we end up with the original Senate Bill as the law of the land?

Here is an analysis by ERIC.


Advocating the Employee Benefit and Compensation Interests of America’s Major Employers

March 16, 2010

Healthcare reform is now in the root canal stage of the process, where pain and procedures seem to be dwarfing more substantive considerations.  At the moment, all eyes are focused on the House, where Speaker Nancy Pelosi (D-CA) must come up with 216 votes to approve the healthcare legislation passed by the Senate last December as well as a “sidecar” bill that would make enough changes to the Senate bill to assure an “aye” vote in the House for the legislative package as a whole. 

House action:  Yesterday the House Budget Committee got the ball rolling by approving a “placeholder” bill that has now been sent to the House Rules Committee.  The Rules Committee will substitute the “real” reform language for the fake language and then have a vote on a “rule” for the bill – i.e., how it will be packaged, how many amendments can be offered, how long debate can last, etc.; a vote in the Rules Committee could take place Wednesday or Thursday. 

If all goes as planned and the House Rules Committee reports out the legislation, a vote on the overall reform package in the House could occur Friday or, more likely, late Saturday afternoon.  At this point it is not entirely clear what this package will entail, i.e., if the Rules committee will keep the Senate legislation and a House sidecar bill separate or whether the two will be combined.  In the latter scenario, a vote to approve the sidecar would be “deemed” to also be a vote for the Senate bill.

One potential sticking point in all of this is that the Congressional Budget Office has still not released its final “score” on the legislative package; this score is important because a bill that bursts the $1 trillion optical ceiling for the cost of the legislation will have a harder time picking up stray votes in the House. 

Note:  the legislative language for the sidecar bill also has yet not been released.   

Senate action:  If the House summons 216 votes to approve this new healthcare reform package and avoids the numerous potholes that could cause its wheels to fall off, the last stage is consideration in the Senate.  At this point, the Senate bill will have been approved by both the House and the Senate and will have been sent to the president for his signature; although no definitive statement has been issued by the Senate parliamentarian, it appears that the president must sign the Senate bill into law before a reconciliation bill can amend it in the Senate.  What the Senate will consider and vote on is just the sidecar reconciliation bill

 As has been made much of lately, the Senate needs only a majority vote to approve the sidecar reconciliation bill and not the 60 votes to overcome a filibuster.  The trade-off, though, is that the reconciliation bill may not include any policy provisions that do not have a budgetary effect on the bill’s bottom line. (That is why Speaker Pelosi has been hamstrung in her ability to add a provision to the sidecar bar to appease anti-abortion House Democrats.)

 But here’s another rub:  the Senate may not necessarily want to approve the sidecar bill exactly as it was sent over by the House; the problem is that any changes to the sidecar would mean that the bill would need to go back to the House for another vote.  This would probably sound the death knell for healthcare reform legislation.


March 16, 2010 Posted by | Federal Government, healthcare | , , | Leave a comment

The Slaughter Solution: Bending the Rules Beyond Belief

March 15, 2010

To: Interested Parties From: Ranking Republican David Dreier (R-San Dimas, CA)

Subject: The Slaughter Solution: Bending the Rules Beyond Belief

The Democratic Majority has a problem with their efforts to pass healthcare legislation, and it’s political: they simply do not have enough Members in the House willing to vote for the Senate-passed healthcare bill. That’s understandable because it’s an awful bill loaded with special interest provisions. To solve their political problem, they’re looking for a procedural solution. That’s where the Rules Committee comes in.

On Sunday, senior presidential advisor David Axelrod said on ABC News’ This Week, “We don’t want to see procedural gimmicks used to try to prevent an up-or-down vote on this issue.” But gimmicks seem to be exactly what House Democrats are planning to use.

According to a Friday report in Politico, “[Speaker] Pelosi reminded her members, as she frequently does, that she wants to make the whole process as quick and politically painless as possible, a person present said.” Given the widespread unpopularity of the healthcare process, and the Senate bill in particular, it may be quick, but it won’t be painless. How will they attempt it? The “Slaughter Solution.”

If House Democrats are going to be able to move the Senate-passed healthcare bill and a reconciliation “fix-it” package, they are going to have to seriously bend the rules to make it happen. Moving the Bill through the House Under the Democratic Majority’s strategy, they must get 2 bills to the President’s desk: (1) the Senate-passed healthcare bill and (2) the reconciliation “fix-it” legislation colloquially referred to as the “sidecar.”

The House Budget Committee is beginning the process by marking up the “fix-it” bill today. That bill will be just a shell. Its text will be replaced in the Rules Committee with the still unseen (as of Monday morning) text of the reconciliation bill.

Bearing in mind the main problem facing the Majority — a lack of votes for the Senate-passed bill — we expect them to use the rule providing for consideration of the Senate and sidecar bills to minimize the number of difficult votes they will have to force their Members to take.

There are at least five potential paths illustrated in the table below. Senate Bill (Senate Amendment to H.R. 3950)

Reconciliation “Sidecar” (yet to be reported by Budget Committee

Scenario 1: “Play it Straight” Rule provides for an up or down vote Rule provides for an up or down vote

Scenario 2: “Slaughter Solution 1” Rule “deems” the Senate bill passed immediately and sends the bill to the President Rule provides for an up or down vote

Scenario 3: “Slaughter Solution 2” Rule “deems” the Senate bill passed upon House adoption of reconciliation sidecar Rule provides for an up or down vote

Scenario 4: “Slaughter Solution 3” Rule “deems” the Senate bill passed when the Senate passes the reconciliation sidecar Rule provides for an up or down vote

Scenario 5: “The Double Whammy” Rule #2 “deems the Senate bill passed immediately and sends the bill to the President

Rule #1 allows the Rules Committee to turn off the motion to recommit

Rule #2 “deems” the sidecar bill passed immediately and sends the bill to the Senate

If the Majority were to handle these items under regular order, we could expect up or down votes on both the Senate-passed healthcare bill and the sidecar bill. We know that won’t happen. Their political problem is a lack of will to take that all-important first vote on the Senate healthcare bill.

This brings us to the “Slaughter Solution” and its many variations. The Slaughter Solution When the Chairwoman of the Rules Committee floated the proposed “Slaughter Solution” last week, the outcry was immediate. What she proposed was using a rule providing for consideration of both the Senate and sidecar bills to “deem” the Senate bill as passed, avoiding the political problems that stem from taking a true up or down vote on the horribly unpopular legislation.

The Slaughter Solution comes in three flavors: in the first, the rule simply self-enacts the Senate bill and sends it along to the President for his signature; the second deems the Senate healthcare bill adopted only upon House passage of the reconciliation package; and the third, most egregious option, conditions adoption of the Senate healthcare package on the Senate passage of the reconciliation sidecar. Only then would the Senate-passed healthcare bill be approved by the House.

In all three of these scenarios, the Senate-passed healthcare bill wouldn’t be given an up or down vote on its own. While it appears that the Democratic majority has not definitively settled on a strategy, the third Slaughter Solution may not be viable. Recent reports indicated that the Senate parliamentarian has thrown cold water on that scenario by asserting that the House must approve and the President must sign the Senate-passed healthcare bill before the Senate can even begin the reconciliation process.

The reasoning was that the reconciliation instructions contained in the Budget Resolution require changes in law, and changes to a yet-to-be-enacted bill don’t count. Even Speaker Pelosi and Majority Leader Hoyer seem to have accepted this detail as a reality that must be confronted.

There is one final scenario that is so over the top that it’s unlikely that even this Majority would attempt it. But considering their track record, it’s worth mentioning – if they are running into serious problems rounding up those final votes, they may try anything.

Due to reforms put in place at the beginning of the Republican majority, the Rules Committee is prohibited from reporting a rule which eliminates the minority’s ability to offer a final amendment to a new bill before the House, called a motion to recommit. If the Democratic Majority were to first pass a rule “turning off” the motion to recommit, they would be able to perform a magic trick I’m calling the “double-whammy:” one rule could self-enact both the Senate health care package and the reconciliation sidecar, meaning with one vote we could pass both bills without anyone having ever actually voted up or down on them.

What Happens Next? After the Budget Committee finishes its markup, the Rules Committee will meet, and we expect to report a rule matching one of the 3 Slaughter solutions described above. Assuming that the Democrats muster enough votes to pass the rule, it’s likely that the Senate bill will be on its way to the President, and the Senate will have the reconciliation sidecar in its hands.

It is worth remembering that the reconciliation process is entirely about the Senate. While it enables the Majority to side-step many of the Senate’s 60-vote requirements, it is also tightly restricted by the Budget Act and Senate rules. So the House-passed sidecar bill must meet the Senate’s tests for reconciliation, and the individual provisions in the bill must avoid running afoul of the “Byrd Rule,” which prohibits inclusion of non-budget related items in a reconciliation bill.

This raises a number of questions that can only be answered once the reconciliation sidecar has left the House and begins moving through the Senate process:

Does the “sidecar” qualify as reconciliation legislation in the eyes of the Senate? If the House makes any mistakes in its handling of the bill, it may be enough to call into question the legislation’s status, and could easily derail the entire process with no chance of getting it restarted. Merely titling a bill “reconciliation” is not enough; the Senate looks at the process which passed the bill to define its status. The more shortcuts the Majority takes with the rule, the higher the probability of problems on this front.

Are any of the provisions subject to strike under the Byrd Rule? If a Senator’s point of order that a provision violates the Byrd Rule is sustained, and they can’t get 60 votes to retain it, then even if the Senate passes the reconciliation bill, it must come back to the House for another vote. Depending on what got stricken, it could make House passage difficult.

Will any amendments be adopted? While the use of the reconciliation process limits debate, it does not limit the ability of Senators to offer amendments. Any amendments adopted will force the bill back to the House for yet another vote. Again, depending on the substance of the any adopted amendments, it could make a House vote difficult. The one thing that history demonstrates is that the reconciliation process in the Senate is unpredictable. No matter how well you “scrub” the provisions in a bill for potential Byrd rule violations, something always gets through.

The Deficit Reduction Act of 2005 had 3 provisions which were stricken on Byrd rule points of order despite a thorough review. The notion that the reconciliation bill will be immediately cleared by the Senate for the President is difficult to fathom.

The Bottom Line

 Reconciliation is no silver bullet. It requires a leap of faith that the Senate won’t change anything and — with all due respect to the Senate — that faith is misplaced. Institutionally, they simply can’t guarantee that outcome. Any House Democrat who votes for a rule that moves this process forward is really voting for one thing — to make the Senate-passed healthcare bill the law of the land. The actual language of the rule will be unequivocal on that point. Just because you use a bat to hit a ball instead of throwing it, your neighbor’s window is still just as broken.

A vote for the rule is a vote for the Senate bill. There is no getting around that fact. They can break any arm, bend any rule. But the Democratic Majority cannot deny that they are turning the process of our democracy on its head in an effort to achieve a highly unpopular, partisan objective.

March 15, 2010 Posted by | Federal Government, healthcare | , | Leave a comment

As a progressive, Obama hews to the Wilsonian tradition

Editor’s note: In interesting read of the ideological leanings of government leaders. By George F. Will

Thursday, March 11, 2010

Wilson, once a professor of political science, said that the Princeton he led as its president was dedicated to unbiased expertise, and he thought government could be “reduced to science.” Progressives are forever longing to replace the governance ofpeople by the administration of things. Because they are entirely public-spirited, progressives volunteer to be the administrators, and to be as disinterested as the dickens.

Professor Obama, who will seek reelection on the 100th anniversary of Wilson’s 1912 election, understands, which makes him melancholy. Speaking to Katie Couric on Feb. 7, Obama said:

“I would have loved nothing better than to simply come up with some very elegant, academically approved approach to health care, and didn’t have any kinds of legislative fingerprints on it, and just go ahead and have that passed. But that’s not how it works in our democracy. Unfortunately, what we end up having to do is to do a lot of negotiations with a lot of different people.”

March 14, 2010 Posted by | Federal Government, healthcare | , , | 1 Comment

Boiling Down the Health Care Discussion

The health care debate is essentially about access and cost. The bills also include a significant language on quality. The quality agenda is highlighted by funding for the National Quality Forum and Health Information Technology. (ARRA also contains significant funding for Information Technology and the structures to support it.)

This post is about change and cost. There can be little doubt that there are significant issues for the uninsured, those that lose coverage between employers, pre-existing condition exclusions, those that can’t afford to pay for their coverage and other related issues. It is also true that we already pay a significant amount in our current premiums for indigent care. The question is, how much care can we afford for those not paying their own way.

That number is somewhere between ‘0’ and ‘100%’. It isn’t 100% since you need productive workers paying taxes to pay for the care of others unable to afford their own care. It is certainly more than ‘0’. Is it 10%, 20%, more?

Second, subject … liberalism vs. conservatism. The original definition of each goes something like this:

Liberals believe that where change is necessary, it should be done quickly. Conservatives believe that things should be changed incrementally to understand the impacts of the changes. If a liberal where in a room which quickly went dark they would be heard to say, ‘lets’ get the heck out of here.’ A conservative would methodically find their way out of the room.

So, how do these two subjects come together? Simply this, the debate currently underway is a ideological one. Should we go quickly or should we go incrementally and how much is affordable. If you can effectively answer those two questions …

March 14, 2010 Posted by | Cost, Federal Government, health information technology, healthcare | , , , , | Leave a comment

CMS Clarifies Exchange of Lab Data

 March 5, 2010

The Centers for Medicare and Medicaid Services has issued guidance to clarify that laboratory results may be transmitted via health information exchanges.

There has been confusion over whether such transmissions were permissible under the Clinical Laboratory Improvement Amendments of 1998, called CLIA. In the guidance, CMS noted that the regulations may be incorrectly perceived as a barrier to HIEs, “but we strongly believe that CLIA can be one of several important levers to optimize health information exchange and realize the goals set by ARRA.”

Unless specifically prohibited under state law, patients also may directly receive lab results, according to the guidance. CMS says the guidance is the first of an expected series of memoranda in support of electronic exchange of laboratory information. The final version of the guidance soon will be available at

March 12, 2010 Posted by | Federal Government, health information technology, healthcare | , , , | Leave a comment

Trust on Issues

March 5, 2010

Fifty-seven percent (57%) believe that passage of the proposed health care legislation will hurt the economy. Just 25% believe it will help. Forty-two percent (42%) favor the President’s health care plan while 53% are opposed. Fifty-five percent (55%) say that Congress should scrap the current health care legislation and start over.

Voters now trust Republicans more than Democrats on eight out of 10 key issues, including healthcare, regularly tracked by Rasmussen Reports, but the gap between the two parties has grown narrower on several of them.

March 11, 2010 Posted by | Federal Government, healthcare | , | Leave a comment

Political Dealings

House Democrats Work To Settle on Health Care Endgame

House Democratic leaders worked Thursday to assuage the concerns of nervous rank-and-file members while they awaited final budget numbers for their planned revisions to a Senate-passed health care overhaul. [Read More]

Senate Democrats Weigh Linkage of Student Loan, Health Care Bills

Senate Majority Leader Harry Reid, D-Nev., said he is leaving it up to his caucus to decide whether to wrap a health care overhaul and a student loan bill into a single budget reconciliation package. [Read More]

March 11, 2010 Posted by | Federal Government, healthcare | , | Leave a comment

Declare Health Care Independence

Editor’s note: Link to the petition, below, and decide whether you support these several health care principles.

On Saturday, March 13 from 12:00 noon to 1:00 pm the Citizens Council on Health Care (CCHC) will be cosponsoring a rally in St. Paul, Minnesota. As part of that rally, CCHC head Twila Brase writes, “CCHC would like to present Congresswoman Michell Bachmann with the LARGEST stack of petitions imaginable against government-run health care!”

Twila asks that all friends of health care freedom join with her in signing the Declaration of Health Care Independence petition.

Please sign the petition and pass the link on to your friends and colleagues.

March 10, 2010 Posted by | Federal Government, healthcare | , , | Leave a comment

What Requires Legal Change and What Doesn’t?

Editor’s note: What requires new laws? What requires regulatory intervention? And what will not yield regardless?


Estimated range of healthcare system waste is $600-$850 billion annually

At President Obama’s Healthcare Summit, SEN. Tom Coburn cited Thomson Reuters’ white paper “Where Can $700 Billion In Waste Be Cut Annually From the U.S. Healthcare System?” The report identifies the most significant drivers of wasteful healthcare spending as follows:

1. Administrative System Inefficiencies: $100-$150 billion

2. Provider Inefficiency and Errors: $75-$100 billion

3. Lack of Care Coordination: $25-$50 billion

4. Unwarranted Use: $250-$325 billion

5. Preventable Conditions and Avoidable Care: $25-$50 billion

6. Fraud and Abuse: $125-$175 billion

Source: Thomson Reuters. “Where Can $700 Billion in Waste Be Cut Annually From the U.S. Healthcare System?” October 2009.

March 9, 2010 Posted by | Cost, Federal Government, Fraud and Abuse, Overuse, quality | , , , | 1 Comment

What if the Cost Projections Are Wrong?

Editor’s note: There appear to be no fail safe mechanisms in the new bill, in the event that the cost projections turn out to be wrong and it costs more. Even if there are fail-safe triggers, will a future Congress have the will to allow them to be triggered? See physician reimbursement under SGR (Sustainable Growth Rate) over the past 12 years. Does the phrase, “Not on My Watch” come to mind?

This from the NY Times:


But even some lawmakers who voted for the Senate bill have been calling in recent weeks for additional steps to be taken to guarantee that new spending will not spiral out of control. They also want to ensure that Congress will follow through on proposed cuts, especially reductions to slow the growth of Medicare.

Many experts have warned that members Congress may not have the stomach to carry out the proposed cuts in the future. In January, five Democratic senators, including Michael Bennet of Colorado and Mark Warner of Virginia, sent a letter to the Senate majority leader, Harry Reid of Nevada, urging him to include a “fail-safe” mechanism in the final bill that would result in cuts if spending were to exceed estimates.

Representative Chet Edwards, Democrat of Texas, noted the absence of such a fail-safe when he voted against the House bill in November.

“I am especially disappointed that the bill does not have a fiscal trigger in it to cut spending if actual costs of new programs turn out to be higher than projected,” Mr. Edwards said in a statement. “While the Congressional Budget Office predicts this bill is paid for over 10 years, there is no mechanism in the bill to force spending cuts if those complicated projections turn out to be wrong.”

So far, there is no indication from the White House or Democratic Congressional leaders that they would include such a mechanism in the legislation. One Senate leadership aide dismissed the idea as a “second tier” issue at a time when officials are focused on how they can make final changes to the core components of the health care legislation through the budget reconciliation process.

After the health care summit meeting last week, Mr. Altmire said the legislation still seemed “weak” on cost containment.

Representative Lincoln Davis, Democrat of Tennessee, who voted against the House bill in November, raised similar concerns after the summit meeting last week.

“America has the best health care system in the world, but we need to work on reducing its costs,” Mr. Davis said in a statement. “Folks in my district could care less about the partisan gamesmanship that is being waged by ideologues who are only interested in scoring political points, they want affordable and accessible care, and they want an honest discussion on workable solutions.”

March 6, 2010 Posted by | Cost, Federal Government, healthcare | , , , | Leave a comment