Commentary from Dave Durenberger

June 4, 2009

DAVID BROOKS ON INSTITUTIONAL CULTURE
Like many of you, I like the way David Brooks (NYT-Lehrer News Hour Friday) thinks about the politics of social change. We read his June 2nd column in the New York Times on why we, as the new owners of General Motors, shouldn't expect too much. It's the problem of institutional culture and its resistance to change. Gwen Ifill expressed much the same in her questions of GM CFO Robert Young the previous evening. At least 20-year GM vet Young looked at the camera in promising a new day. CEO Fritz Henderson, with 32 GM years, read an otherwise optimistic statement and never once looked us in the eye. We'd better bet they are both gone in a year or . . .

NO WE CAN'T
Here's what you do next: Think about the members of Congress who look us in the eye while telling us why they cannot support President Obama's boldest moves. Not all of which are really that bold. Like allowing 28 percent tax subsidies for charitable contributions. Or bringing Gitmo prisoners to "Super Max" prisons in the U.S. from which no one has ever escaped. More serious is the ability of the majority leadership to deliver from the disparate views of Democrats the support a new president requires.

You get the point. I hope. Congress is its own institutional culture. Frogs in the boiling water. Diluting the value and the incentives for leadership - in the two houses of Congress - or from our president. "Yes, We Can" is now "No, You Can't." It's not just the Republican minority. Their motives are so obvious they're easily ignored. More serious is the presumption that there are serious weight-lifters among the majority committee chairs. Ted Kennedy, who has battled cancer just to finish a job he started 40 years ago is one. Then…

THE BATTLE FOR THE SUPREME COURT
It is possible that President Obama will have several chances to nominate new members of the U.S. Supreme Court. The list of nine he considered seriously before nominating Second Circuit Judge Sonia Sotomayor was most impressive. Re-reading Obama's Audacity of Hope it is clear how important the Constitution and his commitment to it are. Judiciary Committee hearings will tell us how well she lives up to his judgment of her.

Republicans wasted no time fulfilling their commitments to the GOP base. Right wing radio has been laying groundwork for weeks - including the about-to-be-famous New Haven Firefighters case. Newt Gingrich was the first ex-office holder, potential party leader and perennial presidential wannabe to weigh in, calling Sotomayor "a racist" and telling her to ask the president to withdraw her name. This because of a comment she made in 2001 suggesting a Latina might be a better judge in some cases than a Caucasian male.

This is the right's war on "empathy," which Karl Rove in the Wall Street Journal codes as "readiness to discard the rule of law whenever emotion moves them." I checked Webster for "empathy," which came up as "understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts and experience of another" which aren't explicitly expressed as such. Emotion is "a state of feeling; a mental reaction (as anger or fear)… a strong feeling directed toward a specific object …accompanied by physiological and behavioral changes in the body." Racism is "a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."

I've been recommending lawyers for judicial appointment for more than 40 years, and have voted on hundreds of nominees to the federal bench - including Judge Sotomayor. I have watched the really good judges handle difficult cases at both the trial and appellate level. Trial judges talk to me about what they see in the lawyers before them, especially what they see that will predict whether an otherwise smart and well-informed lawyer will make a good judge. I've sat across from good friends and told them why I thought they weren't the best choices to move to the bench from the bar. It's not easy, but it's essential to preserve the rule of law.

In my opinion a really outstanding judge and justice will have two qualities: (1) knowledge of and deep respect for the law and (2) empathy. The record will show you (1). That's why committee hearings are extensive and prolonged. Sometimes. A good constitutional lawyer like Barack Obama can tell you about (1) as well. No president in modern times has owed so much to the Constitution and to the rule of law as he. Empathy is more difficult. But often, more important. I'll guess President Obama can read it in us when he needs to because he's had to in order to get as far as he has. Awareness, sensitivity and understanding are treasured traits in every relationship. None more so than the relationship between the powerful and those to whom they are accountable. Whether a parent and child, doctor and patient, priest and penitent, teacher and student, judge and judged.

We are a nation of laws rather than of men. We are also an immigrant nation, blessed by the values and the citizenship of hundreds of races, tribes, religions and cultures. They keep coming. We are a great nation only when we value this effervescence. To value it, we must be aware of it, sensitive to it, and understanding of it. The rule of law in this unique kind of a nation demands it of us, those of us who are lawmakers, law executors, and law interpreters. Especially of those who sit in judgment of our acts, of our intentions, of our law-makers and of what they produce that is us.

Everything else I've learned in the Senate has been about litmus tests created by single-issue partisan politics from the far right or the far left. I junked those tests early in my professional career. And I've never once regretted having done so. I voted for liberals I served with in Congress, like Abner Mikva of Illinois, with whom I rarely voted, because they were truly great persons and professionals - and turned out to be great judges. I voted for Bob Bork and Clarence Thomas for the very same reasons, not because I agreed with them on every issue, but because I believed they were well prepared for the task.

There was a day when a majority of the Senate used these standards to judge judges. Sadly, that is no longer the case. We must rely more than ever on the judgment, not of the United States Senate and its varied experiences, but of the President of the United States and his (or someday hers). Especially his personal commitment to the Constitution he lived by and swore to uphold.

KEEP TELLING THE TRUTH UNTIL IT STOPS WORKING
President Obama told Tom Friedman that's a joke they tell in the White House, but that he means to keep doing it anyway. Especially in relations with and in the Middle East. See Friedman New York Times, June 3, 2009. It's what I believe makes this presidency special. For most people around the world, the definition of a politician is "say one thing and do another." Or, as Obama told Friedman, my message is "Stop saying one thing behind closed doors and another publicly." Reminds me of the time I handed Benjamin Netanyahu a business card from King Hussein of Jordan that contained Hussein's personal phone and fax (in 1993) and suggested he call the king. "Can't do it," he replied, "and expect to become the leader of my party."

SOME RHETORIC KILLS
Anti-abortion professionals rushed to decry the murder of Dr. George Tiller while he passed out church bulletins prior to Sunday service at Redeemer Lutheran Church in his home town of Wichita, KS. Operation Rescue's Randall Terry, the best known of the "damn the abortionists" crowd, went out of his way to deny that the negative rhetoric directed at doctors could incite violence. According to the Wall Street Journal, Terry went on to compare Dr. Tiller to a Nazi war criminal and suggest that Tiller invited his own death. "He was a murderer who reaped what he sowed."

If you pay any attention to the provocative nature of the anti-abortion rhetoric, and match it with thousands of acts of deliberate confrontation with abortion providers, patients, or members of Planned Parenthood, you will find it difficult to believe there isn't a direct connection. It may be that those who throw the rocks, the bottles, the bombs, or burn the crosses and other signs on yards are a bit deranged. But those who use inflammatory rhetoric to condemn "murderers," as they call them, are guilty of sowing the seeds and must reap the shared guilt.

by Weyant's World

REPUBLICANS - WHAT FUTURE?
When I heard Dick Cheney disavow Colin Powell as a Republican, I began to wonder how one can tell a Republican these days. Ronald Reagan and Jack Kemp have died, the Bushes have been discredited by the current batch of Republicans in name only, Dan Quayle is trying to save Chrysler and his golf game, discredited Speaker Gingrich has transformed himself into a Catholic presidential candidate, and Bob and Liddy Dole are enjoying life at the edge of Washington's political life.

In Congress it is hard to find any Republican who can find a way to agree with a new Democratic president who seems to be working hard to find common ground on which to build a new American economy. The Senate's Republican numbers are as low as any time since post-Watergate and there are few of the stature of Howard Baker, Bob Dole, Pete Domenici, Dick Lugar, Jake Javits, Mark Hatfield, Bob Packwood, Bob Stafford, Bill Cohen, Jack Danforth, John Chafee, Al Simpson and Mark Andrews. In the House, the challenge of perennial campaigns and the battles for ascendancy to leadership are incessant.

Eric Cantor (R-VA) is running a road show to ask the question I am asking. Paul Ryan (R-WI) is fighting budget battles that are worthy of the ones Gramm, Rudman and Hollings ran in the Reagan years. Kevin McCarthy (R-CA), the chief campaign recruiter for the party in the House, told Bloomberg News he's looking for candidates "who are ethnically diverse, female, less partisan and even supportive of abortion rights. So far these efforts are more concept than reality." Of 218 seats in the Senate and the House held by Republicans, 89 percent are white Christian men, illustrating just how big the GOP tent is today.

LEAVE RUNNING ROOM FOR THE BIG STUFF
Presidential Chief of Staff Rahm Emanuel says the president has pressed the Congress on a variety of "first 100 days" legislation. He has accepted less than ideal policy, including consumer protection from mid-contract credit card fee changes accompanied by the right to "keep and bear arms" in our National Parks, but without any limit on usury charges in order to get the small stuff out of the way before Washington comes to grips with health policy, energy and environment policy, and appropriations.

TRANSFORMING TRANSPORTATION
Minnesota 8th District Congressman Jim Oberstar wants the Congress to take up and pass his "transformational" surface transportation re-authorization bill after the Memorial Day recess and before the 4th of July recess. Jim has been in Congress now for more than 40 years, first as an aide to Congressman John Blatnik and, since 1977, as Blatnik's successor. Both served as chair of the powerful House Transportation Committee from whence Blatnik was instrumental in creating the Interstate Highway System in 1956. Both have poured national gas tax revenue into northeastern Minnesota.

Oberstar, a stellar bicyclist at age 74, has been responsible for sending gas tax money into urban and rural bike trails across the country. This year his goal is to make mass transit more creative and more affordable, and to encourage states to accelerate development, construction, and safety maintenance of highways and bridges.

What you can count on will be inter-modal warfare over a limited pot of federal gas tax dollars plus the fight against too many "earmarks" like the famous "bridges to nowhere." What you won't see, unless Republicans and former governors in the Senate step up, is a call for devolving responsibility and accountability for transportation investments to the 50 states, along with the fuel consumption taxing capacity to make good on priorities and promises.

FARMERS AND RANCHERS VOICES TO BE HEARD
Minnesota 7th District Congressman Collin Peterson knows his politics. Starting in early May he brought together the members of the House Agriculture Committee he chairs to make common cause on getting jurisdiction with Henry Waxman's Energy and Commerce Committee over the fast-moving "cap and trade" energy policy/climate change bill. "This is an urban-dominated bill. These enviros come out of these urban areas and they have no clue what's going on." Peterson claims to have the potential "no" votes of 25 Democrats on his committee and 15-20 more from the south and other rural areas. So Nancy Pelosi, Waxman and sub-committee chair Ed Markey of MA pay attention even though seven other committee chairs could claim joint jurisdiction and haven't. Charley Rangel, the Ways and Means chair, says he would like to see the bill before it goes to the floor - but only after Charley reports out a Health Reform bill!!

In May, Peterson boldly staked out a claim for regulatory jurisdiction over derivatives. On behalf of farmers, ranchers and related commodity producers and traders, Collin wants the jurisdiction in Chicago at the CFTC rather than in New York City and the SEC.

MINNESOTA SENATE RECOUNT
While former Senator Norm Coleman and Al Franken argue their cases before the five members of the MN Supreme Court, the National Republican Senatorial Committee (NRSC) led by Texas Republican John Cornyn, is "standing by its man." The NRSC has extended a $750,000 "line of credit" to Norm to help him pay his substantial legal bills. Coleman has to pay the attorneys, but his former colleagues have pledged to contribute to his recount fund up to $750,000 beyond the $1 million-plus they've already invested. Cornyn's earlier commitment to "take however many years to get to the Supreme Court" no longer stands, apparently. So, this could be it.

FINALLY - SERIOUS ABOUT EDUCATION REFORM
U.S. Secretary of Education Arne Duncan was in San Francisco talking to California educators the same day the President took on Dick Cheney, Guantanamo and torture as an interrogation technique. Duncan's message to California was just as blunt: We can do a lot better by America and we intend to do it. The issue is how the administration will spend $5 billion in stimulus funds to jump start a "Race to the Top" in elementary and secondary education. California is broke and its educators are anxious to have the feds invest some part of the $100 billion of education improvement money in California schools. But Duncan said "It's not likely."

"Your state once had the best education system in the country. You made sure students were ready to enter your universities or be productive participants in the workforce." The implication was clear - that California has a long way to go before it is a state that can show others how to do education right and today it isn't in the running. "Are you going to lead the race to the top or lead the retreat?" he asked. Part of the requirement is that schools collect data on student performance to judge the effectiveness of teachers. Another is that they pay more for excellence in science and math teaching.

School superintendents reacted positively to the message, although the San Francisco superintendant is quoted as saying "Our entire state is going down the tubes." The executive vice president of the teachers union, of course, challenged Duncan's notion of collecting effectiveness data on teacher performance, calling it an "attack on teachers." "We need more data," she said, "but not to use it as a basis for teachers' pay." And there, Mr. Duncan and Mr. Obama, you have the problem!!

WHY CHANGING AMERICAN HEALTH CARE AND EDUCATION IS SO MUCH ALIKE
In a speech to the American people I want President Obama to make, he talks to us about what it would be like to live in an American health system. Most Americans don't. In every industry in this country, except medicine and education, continuous quality improvement, combined with informed consumer choice and competition, drives costs down and value up. In health care and education the presumption is that if you want better performance from either you have to pay more. If you need to improve quality spend more money.

In both education and in health care, you can find communities, teachers and schools, doctors and hospitals that produce excellent results for a lot less money. That's true even after you factor out the socio-economic-health variables. It's not private education vs. public education. It's competition between schools within either public or private based on continually improving student learning and achievement. If teachers run the school and are rewarded financially and by student/family choices with increasing demand for their services, the quality goes up.

Health care is like this, but more difficult because consumers rarely have the information they need to make choices that drive health care performance improvement. But you can go to many communities from Hawaii to the Pacific Northwest to the Upper Middle West and New England and find communities that far outperform the medical care in the rest of the nation when you measure its quality. Most are driven by physicians and other health professionals who have worked to improve the health of the community as well as the quality of their medical practice.
The teachers' union executive in California who argues against financially rewarding teachers who are more effective educators is a lot like the doctors who resist having their own performance compared to their peers. They will attack the measures and the measurer and the collection of performance information as violations of patient privacy instead of coming up with a better way than the past/present for patients to know whether they are getting "their money's worth."

ATUL GAWANDE, M.D.
Rolls another strike in the June 1 issue of The New Yorker. A visit to McAllen, TX, where doctors are currently draining $15,000 per year per Medicare beneficiary from the Medicare program - twice the national average per capita. Twice what doctors up the valley in El Paso are doing. Three times the medicine practiced in Grand Junction, CO.
"Dramatic improvements and savings (in American medical practice) will take at least a decade. But a choice must be made. Whom do we want in charge of managing the full complexity of medical care? We can turn to insurers (whether public or private), which have proved repeatedly they cannot do it. Or we can turn to the local medical communities, which have proved that they can. But we have to choose someone - because, in much of the country, no one is in charge. And the result is the most wasteful and the least sustainable health-care system in the world." Gawande's conclusion.

HEALTH INSURANCE POLICY REFORM
Take a look at the details for ten-year health care cost reductions sent the president by the Big Six of the health care industry this week. Not much they couldn't be doing today if the will were there. The SEIU (union for low-paid health care workers) was weakest: Medicaid changes, not worker compensation or employment changes.

Big exception: America's Health Insurance Plans (AHIP) wants to make health insurance more accessible, more affordable, more productive and more competitive. AHIP super-exec Karen Ignani says it's time to write national rules by which the industry competes to lower premium costs and lower transaction costs for providers. Proof positive is the fact AHIP spokesperson and Kaiser Permanente CEO George Halvorson apparently has actually moved from Oakland to Washington, D.C., for the summer to persuade Congress it can do it.

The challenge - as it has been for decades - is how best to provide affordable insurance to individuals and small employed groups fewer than 100. The answer has always been to use statutory authority in state and federal law to form insurance co-operatives which individuals and small groups buy into. Senator Jeff Bingaman (D-NM), who is ranking Democrat after Kennedy on HELP, has just such a bill which I sponsored with him in 1991-02 - Health Insurance Purchasing Cooperatives.

Unfortunately, the Clintons included HIPC in their reform bill and gave it a bad name. Since then, it's been proposed and attacked in some hybrid form - including by President Bush 43. It will work along with national insurance rules. The opposition will come from the CDHC crowd of insurers, bankers, HSA peddlers and consultants who make millions selling individual plans and individual companies. But they have always been high-cost financial instruments posing as health insurance.

THE HEALTH HOME STRETCH
If you're a horse-racing fan, this year's "memorable event" is Calvin Borel's stretch drive of Mine That Bird to win the Kentucky Derby. You may smile to recall Borel's switch to Rachel Alexandra at Pimlico's Preakness, and then back to his Derby winner at the Belmont. Susan Page has been around long enough to capture the horses in the latest health reform Derby (USA Today, June 1, 2009). I want to believe Obama is Borel and health reform is the horse he has never ridden before this year. He's coming around the final turn this month. A dozen congressional committees and a dozen medical industry lobbyists are the wet clay track. Kennedy-Baucus-Waxman-Rangel-Miller are the jockeys up on the horses with the better betting odds.

TED KENNEDY BACK ON THE HILL
Members of Congress returned to Washington from their Memorial Day recess prepared to work hard in preparation for the 4th of July recess. Leaders of the Senate Finance Committee and the Health-Education-Labor-Pensions Committee want to have a bill the majority in each can agree on by the end of June. Ted Kennedy's doctors tell us his brain cancer is in remission. Wife Vicki Kennedy says the 77-year-old "is doing just fine" and buddy John Kerry says "he looks terrific."

Finance chair Max Baucus says HELP, with Kennedy wielding the gavel, will mark up first, and only after they finish will Finance begin its own mark-up. There will be differences between the bills given the committees' jurisdiction and the backgrounds of their members. We all remember that HELP was the only congressional committee to mark up a Clinton reform bill in May of 1994. I remember it because Kennedy announced the birth of my first grandchild in the midst of mark-up: Sara Marie Durenberger, who turned 15 on May 11.

Kennedy will live to see a reform bill. It is likely to be better for his presence in the negotiations. Everyone knows Kennedy wants a bill that promises coverage for all Americans. What they will appreciate is that the recent Massachusetts experience, in which Kennedy counsel John McDonough played a key role, will move cost-containing payment reform farther along than some provider and insurance groups might like. There are enough Republicans who appreciate the chairman's many efforts to work with them, to add bi-partisan dimension to the cost-containment measures critical to success of the legislation.

REPUBLICANS MOVE ON HEALTH REFORM
While ranking Republicans Chuck Grassley (R-IA) on Finance and Mike Enzi (R-WY) work with their Democratic chairs to find bi-partisan policy, less patient members of HELP Tom Coburn (R-OK) and Richard Burr (R-NC) announced their own bill with support from House members Paul Ryan (R-WI) and Devin Nunes (R-CA). Their bill moves beyond the high-deductible-HSA-funded individual insurance policy of the Bush Republican era to take on tax and insurance reform. Their proposal abandons employer-paid insurance premium deductions in favor of uniform individual tax credits, tax subsidies for low-income insurance premiums, and private Medicaid and state-level insurance exchanges.

Positive contributions, compared to other Republican measures which restrict the federal government from sponsoring comparative effectiveness research or from implementing performance-related payments "which would restrict how doctors practice medicine." The tax treatment changes have been part of every reform proposal since my first Consumer Choice Health Act of 1979. Much of Medicaid is already managed privately through the states.

HEALTH CARE PRODUCTIVITY
Increasing the revenue return from each dollar spent on labor in a very labor-intensive industry like health care is a serious problem. A lot of time, effort and investment are spent today on information technology and data processing as a way to increase productivity. The absence of the information analysis and utilization tools from health care makes its introduction and dissemination look like Holy Grail.

While everyone supports crash investment in HIT, the health care professional guilds continue lobbying for state legislative mandates that require employment of more professionals, new licensed categories of professionals, professional protection from competition and more unionization to protect and enhance compensation and fringe benefits. The "value for money" test will be applied in the competition around health info technology, but not around the productivity of highly trained/educated professionals.

by Eric Allie

WHY PAY FOR PERFORMANCE?
The toughest job in health system reform is proving to the public that it needs to cough up more money to get more value (lower costs-higher quality) out of their local health care systems. Most of us assume we're getting it now. We are used to the idea that if we want "miracle drugs," new implanted joints and new cancer treatments we are going to have to pay more. But why pay more to be "linked in" to our doctor, clinic or hospital? Every other service seller does it for free to get us to buy their products.

Why should we have to pay for the assurance that our next trip to the hospital will be error-free, safe and satisfying? And no re-do necessary? That at some stage, the presence of competing hospitals in town means the prices of what they do come down? A lot of people who advocate for greater consumer involvement in health care financing are motivated by the belief that you and I, one purchase at a time, can drive traditional value improvement out of the system. Truth is, we can - but only if we work with "competing" doctors, hospitals and insurance plans in our own communities.

Together we can make a difference. It almost always takes leadership from physician groups, hospital boards, large employers and local insurance plans to get it done. But it works. Not as well as it could, because the amount of money controlled by Congress and state legislatures in the Medicare and Medicaid programs and in tax subsidy policy is so great that they hold the deciding vote on any "pay for performance" decisions. If the decisions about what Medicare would pay for were made at the state level, and every state received an amount of money proportionate to the number of Medicare beneficiaries in the state, I'll guarantee you things would change quickly.

ANY THOUGHTS ON THE EXPANSION OF MEDICAL EDUCATION?
Only that we first conclude what we expect of the practice of medicine (more care-coordinated integrated delivery) and then what licensure/credentialing changes would maximize workforce productivity, and then challenge the education establishment to come up with some new models for professional education and licensure.

ATUL GAWANDE RECOMMENDS "CUTTING FOR STONE"
For readers of this commentary I highly recommend you read Abraham Verghese's Cutting For Stone this summer. I have not enjoyed a book as much in a long, long time. It is a fictional account of medicine practiced in Ethiopia by the most fascinating set of characters you can imagine. Nothing I've read lately is as real as Verghese's fictional account of medicine and its practitioners' lives across three continents and 500 pages.
In real life Dr. Verghese is professor and senior associate chair of medicine at Stanford Medical School and founder of the Center for Medical Humanities and Ethics at the University of Texas Health Sciences Center in San Antonio. He is the author of several other books, and his essays and short stories appear also in The New Yorker and a variety of other national publications. On page 353 we hear Dr. Ghosh tell students this of American medicine: "The things they do, the tests they order; it's like reading fiction, you know? Money's no object. A menu without prices."

CHIP KAHN IS ONE OF THE BEST
Charles Kahn came to work for me in the mid-1980s and became a friend and super health policy advocate. Since then "Chip" has worked for the legislative greats on the House side, for Bill Gradison and HIAA selling "Harry and Louise" and for the last eight years (replacing Tom Scully) as CEO of the Federation of American Health Systems (FAHS) - the for-profit or investor-owned health care industry. He deserves to be, along with Karen Ignani at AHIP and Billy Tauzin at PHRMA, among the highest paid association lobbyists in D.C....So FAHS paid Chip a $1,135,937 "retention bonus" to stay on as CEO, bringing his 2008 comp to $2.3 million and raising even D.C. eyebrows.

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