Commentary from Dave Durenberger

May 21, 2009

National News

NOTRE DAME AND THE POLITICS OF ABORTION
I was raised in and educated by a Catholic university and teach in a Catholic university's graduate school. I served in the U. S. Senate in the 1970s, 1980s and 1990s and witnessed the growing influence of the U.S. Supreme Court decision in Roe v. Wade on the politics of my church and my party. I am a Republican who voted for Barack Obama for president and who believes that at a time when my country is being challenged by forces which are in large part of our own making, that this president has been blessed with gifts which the country - and the world - need desperately.

The decision by the University of Notre Dame to invite the president to address its 2009 graduates and to receive an honorary doctor of laws degree reflects what I have concluded about the man and the times. He proved that in his remarks to the graduates last Sunday, and the university community proved it by their reception for him. The president rightly referred to potentially irreconcilable differences. But he suggested that the circumstances that require decisions to be made by men and women regarding abortion could be drastically changed when both sides spent more time listening to each other than debating their differences.

I, for one, intend to re-read the Roe v. Wade decision, written by my friend Harry Blackmun. I recall that Justice Blackmun spent months researching the issue of abortion, from its legal and legislative history to the medical research he found in the Mayo Foundation library. Blackmun did not begin the debate over abortion in this country. It has been around state legislatures for a long time with varying legislative conclusions.

If Roe v. Wade were overturned by the court, the abortion controversy does not go away. It just becomes more prevalent and more divisive. A national effort to make "abortion - and the need to legislate it in 50 states - rare" could start now. But it would require 70 "angry" Catholic bishops to provide some leadership on the dialogue rather than the judgment they vented on a new president from whom they, and their communicants must expect much more than a change in a Supreme Court decision.

by Illustrator Lisa Benson

NANCY PELOSI AND THE CIA
House Speaker Pelosi has been in politics since she was born to the mayor of Baltimore, Maryland, and his wife. She ought to know better than to engage in a public debate over what she knew and when she knew about the CIA's "waterboarding" of suspected terrorists. The briefings, to which I was once privy, are oral and usually done at a moment's notice with extremely busy - and always pre-occupied people in leadership positions, who don't always know the right questions that should be asked. In addition high-level briefers have been known to deliberately leave out important information, or to put in implications that can't be readily confirmed.

WHO'S PARTISAN?
The Hill newspaper poll of Congressional partisanship finds that Speaker Nancy Pelosi (D-CA) is considered the most partisan member of the House with Energy and Commerce committee chair Henry Waxman (D-CA) second. Democratic majority leader Steny Hoyer (D-MD) is called one of the most bi-partisan. Jim Oberstar and Collin Peterson of Minnesota are among the "most bi-partisan" Democrats.
Michelle Bachman (R-MN) is listed as one of the most partisan Republicans along with four members from the old confederacy.

THE ACCIDENTAL GUERRILLA
When Defense Secretary Robert Gates was asked whether replacing Gen. David McKiernan as U. S. Commander in Afghanistan would end McKiernan's military career, he replied: "Probably." And so it should be. It has taken Al Qa'ida - engineered 9-11-01 attack on the WTC and the Pentagon, a bungled U. S. response in Afghanistan and Iraq, a whole lot of unnecessary death and destruction, and billions of wasted dollars, to reach the point where the United States will acknowledge that "war" as we've known it is likely a thing of the past. In appointing Lt. Gen Stanley McChrystal, a former special operations commander, as McKiernan's successor, Gates acknowledged: "Our mission there requires new thinking and new approaches by our military leadership."

Gates was instrumental in the 9-11 Commission findings and has offered up a starter proposal for shifting investments in the national defense establishment from the mid- 20th century to the 21st. He must now fight the industry's massive investments in every congressional constituency in America. It is up to the liberals in Congress to get off beating up on the Bush Presidency and the failures of Republican congressional oversight. And follow Gates' lead toward re-investment in fighting what David Kilcullen, author of The Accidental Guerrilla, calls "fighting small wars in the midst of a big one.

Kilcullen served 20 years as an infantry officer in the Royal Australian Regiment and the last several years as Senior Advisor to Gen. David Petraeus. It didn't take me long into my read of Kilcullen's book to discover he is a one-of-a-kind, whose instincts, memory and experience has combined to make him an invaluable resource to this nation and its allies. And a target for just the kind of "accidental guerrilla's" this country is creating with its reliance on convention warfare and its technological off-spring in a time very different from any other.

This book doesn't just make a case for a big change in Afghanistan strategy. It lays out a course of action which you will see evolve over the many years we have now committed to putting out the fires we are starting in central and south Asia. If you've read and enjoyed Greg Mortenson's Three Cups of Tea, you have to read Kilcullen to understand why Greg refused to work with his own country's military in Pakistan's northwest states, and what we are likely now to finally do about it.

IT'S ADAM MACKIE
In my last Commentary I told you why Adam Maki's story is that of so many Americans, like Capt. Richard Phillips of Maersk Alabama, whose life Adam helped save. Well, it's not Adam Maki, but Lt. Comm. Adam Mackie of the United States Navy and you will probably never meet him because his assignment is never to discuss what he does only to do it better than any other human being. I asked his dad why an Annapolis grad from northeastern Minnesota could do a job so well that everyone in the world marveled at the result, and only a rare soul knew who was responsible for its execution.

"He's always been that way," said father Jay. "He was born three months prematurely, and my wife and I adopted him five months later. The first time I recommended him to you for appointment to Annapolis, he didn't get it and went to St. Olaf College. You recommended him again the following year and, again, he didn't get accepted. Until two months later, and after he'd been accepted into the 'global semester abroad' program at St. Olaf."

Two days before departing for Annapolis he was bitten by a bat, received a $1,600 serum flown to the Ely, MN, hospital by the MN Highway Patrol, and then was rejected at the Academy's physical because of the serum. He fought back again, won admission, and became the "rowing oarsman" on the USNA's eight-man scow. His crew coach called Adam "the toughest S.O.B. I've ever coached." There's more. But I think you get the point.

A JOCK WHO WAS A BELIEVER
The death of former Congressman Jack Kemp came as a bit of a shock. I knew Jack and Joanne, his wife of 50 years, well. I think most Republican candidates for Congress from the 1970s on, met Jack Kemp during their first campaigns. Whether they were down by 40 points, as I was in 1978, or by 4, Jack could convince you it took just one big play to score. And he had it. The key was believing and reducing the complex to a simple one-liner.

Came from being the successful Buffalo Bills quarterback they picked up from the Los Angeles Chargers of the AFL for $100, I guess. Ronald Reagan said of Kemp on his 1988 retirement from Congress, "We showed this town that if you want to make the government move let a guy from Hollywood and a football quarterback call the plays."

While we debate what a Republican is these days, all of us who knew Jack Kemp have to acknowledge that he represented the kind of Republican who could win anywhere in the country. Then or now. He was principled and consistent. Whether it was Roth-Kemp in the Senate or Kemp-Roth in the House, his advocacy, along with Senator Bill Roth (R-DE), of three years of across-the board income tax cuts, set us up for the big - and bipartisan - tax reform bill of 1986. That cut marginal rates to 28% - by cleaning out many of the special interest exemptions from the base. That's how you build economic incentives. Not by "no new taxes." Those "loophole closures" were all new taxes - to some special influence.

Jack's advocacy of affordable education and housing policy, especially in urban America, went hand in hand with his belief in expanding opportunities for the socially disadvantaged via something other than professional athletics. If Jack could, he'd be the most comfortable Republican in an Obama cabinet today. Jack was a believer in other ways as well. He and Joanne spent hundreds of hours in professing their faith to leaders from other walks of life and of other nations. They believed America's diversity is its secret to success and they wanted absolutely everyone else to believe it too.

GOP FUTURE
Jon Huntsman Jr., the governor of Utah, was nominated this week to be the next U.S. ambassador to China. Besides being a very effective non-partisan on issues like immigration and the environment, he just led an historic effort at health reform in Utah, a most conservative state. Huntsman is very well-qualified to represent and to communicate U.S. interests and policies in China. He learned Mandarin Chinese while a Mormon missionary in Taiwan. He and his wife Kaye have seven children including an adopted Chinese daughter. Huntsman served well as ambassador to Singapore under President Bush 43 and as deputy of Strategic Trade Representation under President Bush 43.

Florida Republican governor Charlie Crist is a candidate of his party to succeed Robert Martinez, also a Republican who is retiring after one term in the Senate. The Rush Limbaugh-Dick Cheney GOP considers Charlie Crist a RINO (Republican in Name Only). Not sure what they think of the Republican attorney general who wants Crist's job as governor. Bill McCollum spent nearly 20 years in Congress where he was known as an old-fashioned cut spending and taxes conservative.

I remember Bill as a strong supporter of entitlement reform and of generational equity. McCollum said on Monday, "The hallmark of my administration will be access and inclusion. It will be an administration that does not focus on partisan labels, but brings the brightest minds from every walk of life together - every race, creed and religion - to solve problems and move the state forward."

GOP FUTURE II
President Barack Obama is about to nominate a successor to Supreme Court Justice David Souter. Republicans in the Senate have prepared by naming Senator Jeff Sessions (R-AL) as ranking on Judiciary and the leader of the loyal opposition. Everyone is relieved that Arlen Specter has left the GOP so that what many in the Republican Party consider the most important Congressional effort can reflect the party's current base and its national policy priorities.

Every right-wing conservative group in the country has mobilized for what the father of grassroots lobbying, Richard A. Viguerie, calls "a massive teaching moment for America." The president will likely surprise us all, but my recommendation is his Solicitor General Elena Kagan who worked on the hill, in the Clinton Domestic Policy Council, taught atUniversity of Chicago Law School with Obama, was Dean of Harvard Law School. And is more than a match for Antonin Scalia.

RONALD REAGAN AND TIM PAWLENTY
President Reagan was well known for having pledged to cut both federal government spending and taxes and for having followed through on the pledge. The short-term result was rapid growth in the national debt, federal budget deficits, and public debt service which continued to grow in size. The longer term result was to bring down interest rates, inflation, and the marginal rate of taxation and to raise employment, earnings, and productivity.

MN Governor Tim Pawlenty followed Reagan by 20 years and has tried to follow a similar course. After six years in office his commitment to "no new taxes" has earned him plaudits from national conservatives and a chance at the vice presidency. "It's not wise to raise taxes in the worst recession in 60 years" says the governor.

Unfortunately, government spending has continued to rise due principally to the costs of education and health care and Minnesota has yet to distinguish itself as a leader in value-based, cost-lowering of either. Because the governor and the legislature must balance the state's budget every year and have yet to deal with the spending of local government, including schools, the costs of "no new taxes and no new policy direction" has ended up in much higher property tax bills for everyone in Minnesota.

ENTITLEMENT REFORM…Senators Joe Lieberman (D-CT) and George Voinovich (R-OH) are the latest to introduce legislation to create a Blue Ribbon Commission on entitlement reform. Senators Kent Conrad (D-ND) and Judd Gregg (R-NH) have done the same, as have Congressmen Jim Cooper (D-TN) and Frank Wolf (R-VA). These are serious efforts by serious people, but unlikely to succeed without either (a) a bigger economic crisis, or (b) support from the chairs of the committees with jurisdiction over the Social Security, Medicare, Medicaid and other program committees.

A better idea would be the Medicare Payment Advisory Commission (MedPAC) model of 17 experts each with two, three-year terms appointed by the Comptroller General after consulting the committee chairs and staffed with competent professional staff. While MedPAC's recommendations have mixed success, they are particularly compelling in times of fiscal crisis when legislators need to be expertly armed to take on powerful interest groups.

REPUBLICANS ADJUST TO SPECTER MOVE...DOES ARLEN?
Former Vice President Dick Cheney on Face the Nation said Republicans could tolerate a few "moderates" but not Arlen Specter. In fact, said Cheney, Colin Powell needs to declare himself a Democrat as well. "We are what we are," said the newly freed Cheney praising Rush Limbaugh's constant comments about good riddance GOPers. In preparation for the president's nomination of a Supreme Court replacement for Justice David Souter, the GOP Senate has chosen its most conservative member, Jeff Sessions (R-AL), as ranking Republican on the Judiciary Committee.

Chuck Grassley (R-IA) has seniority on Sessions, but chose not to use it until 2010, when he will have to leave the ranking spot on Finance because of GOP rules. Want to bet the GOP caucus won't change the rules in 2010 to allow Grassley to stay ranking on Finance, and . . . guess who on Judiciary? Sessions is an appropriate choice for the GOP since he was turned down by the Judiciary Committee in 1985 when President Reagan nominated him for a federal judgeship. When GOP had majority in the Senate! But the people of Alabama have spoken.

Meanwhile Senator Specter (D-PA) is off to a confusing start as a Democrat. For the first couple weeks he seemed to forget which party he belonged to, a fact that will not be lost on Pennsylvania Democratic voters come 2010. Arlen also forgot to check with Barbara Mikulski (D-MD) and Tom Harkin (D-IA) before switching. Both, and a couple others I'm told, objected strenuously to majority leader Harry Reid's deal with Specter which gave Arlen seniority on Appropriations ahead of them.

Health Policy

SOCIAL SECURITY AND MEDICARE
The "trustees" of these programs reported that the impact of the recession has brought the dates of the potential bankruptcy of the Medicare Trust Fund up to 2017. We finance this fund with payroll taxes and Medicare uses the money to pay our hospital bills. They predict Social Security's bankruptcy in 2037. No one expressed alarm over the news. Probably because as long as I've been doing Medicare policy the trustees have been producing the same predictions and it's yet to happen. We did come close to bankrupting Social Security in 1983 but saved it by raising taxes. (Yeah Ronald Reagan!!)

The news that did catch my eye recently is that there will likely be no cost-of-living adjustments to Social Security in either 2010 or 2011. The COL adjustment was put into law in 1972 and has steadily raised SS payments ever since. Until this year when OMB and CBO (the budget offices) say consumer prices have slipped so far that, unless energy prices continue their current climb, there is no boost to senior purchasing power for a couple years.

WHERE'S THE WHITE HOUSE ON HEALTH POLICY REFORM?
Besides the Bid Six event at the White House, HHS Secretary Sebelius announced her health reform team. It now looks like there are two (or more) executive power centers on health policy. The HHS team headed by Jeanne Lambrew includes everyone with a policy reform assignment since the campaign plus Mike Hash, who was called out of his consulting firm in early April by Nancy Ann DeParle to be her deputy. Again.

It leaves former HCFA head DeParle operating out of an office on the first floor of the Eisenhower Executive Office Building. That means she's close to OMB Director Peter Orszag and his assistant Dr. Ezekiel Emmanuel plus the president's chief economic advisor Larry Summers. All of whom have big hands in the economics and the fiscal consequences of health care costs and public subsidies.

Biggest hands of all are those nearest the boss - the president's Chief of Staff Rahm Emmanuel. People like Dr. Dennis Cortese of the Mayo Clinic, who has involved himself in every opportunity to influence health policy reform short of having to register as a lobbyist, view Emmanuel and his former colleagues in the House as driving reform toward a much greater expansion of public insurance programs. Moving Medicaid expansion for low income workers and lowering age eligibility for Medicare. Probably a touch of paranoia here.

THE NATIONAL ASSOCIATIONS OF THE LOWEST COMMON DENOMINATOR
Did it come as any surprise that, four days after they appeared with President Obama, the six national health care associations accused the president of misquoting or mis-interpreting their commitment "to voluntarily reduce the increase in healthcare costs by 1 ½ percent a year over ten years?" They didn't come to the press conference, nor to the promise, with any evidence of how each of the six and the people they claim to represent, would accomplish a feat that has eluded the industry they represented for 30 years. As a friend e-mailed this week, "It's a lot like Elizabeth Taylor promising to stay married to one guy."

Fact is, there are a lot of physician groups and leaders, physician-hospital organizations, and even a health plan or two (like the Kaiser-Permanente run by AHIP's spokesman George Halvorson) that are already reducing cost growth more than the 20% of the annual increase. A majority of their colleagues - and the ones whose membership dues these associations cannot do without - are the problem and are always reluctant to be part of permanent solutions that cost them money. Money which, in a value-based health system, haven't the capacity to earn without changing dramatically.

HEALTH CARE COST CONTAINMENT DÉJÀ VU ALL OVER AGAIN
Among the health care reform proposals President Jimmy Carter sent to Congress in 1979, was one to regulate hospital prices by putting America's hospitals on annual budgets negotiated with HHS. Two states were used as models at the time. One of them, Maryland, still has the rate regulation in place and, according to experts, it works very well. The response of the American Hospital Association in 1979 was a solemn pledge to voluntarily restrain price growth. As a result, a combination of Democrats and Republicans in the House and Senate voted down Carter's proposal. The voluntary restraint lasted for a couple years and, by 1982, we were back to legislatively imposing cost constraints. Including the prospective pricing policy called DRGs in 1983.

This week's announcement by the medical industrial complex of associations in Washington D.C. was to be expected. They will get what they want from the president and the Democratic Congress - a major move toward universal health insurance coverage. Unless we get serious health financing policy change from the Congress, President Obama will get the coverage expansion Democrats want, and those of us who pay the bill in premiums and taxes get a promise that the industry can restrain itself for the next 10 years.

MASSACHUSETTS HEALTH CARE
In a recent visit to Boston we enjoyed talking health policy with the likes of Dr. Jack Wennberg, Gary Gottlieb, Michael Porter, and the leaders of MassHealth Jon Gruber, HHS Secretary JudyAnn Bigby, and State Rep. Peter Koutoujian.

Besides the expected, I discovered one of the reasons the state's economic health makes it possible to afford to insure all comers. There are 131 colleges or universities in Massachusetts. There are 90,000 people in the Boston metro area employed at private colleges and universities. Add publics and you reach 104,000 - more employees than the entire region's computer hardware, software and services business (81,000) or the banking, securities, and investment industries combined (86,000). 10 percent of all NIH biomedical research funding ($29 billion this year) ends up in Massachusetts. In the worst of national economies, education and health care will carry the economy of Massachusetts.

THE MINNESOTA SENIOR FEDERATION
Was, in its heyday, one of the most effective voices for public policy - especially health policy - in America. After 36 years, and as many as 40,000 dues-paying members a year, the Federation is voting to dissolve. This is a voluntary association of people who cared to use their senior years - not just their travel and insurance appetites - to improve public policy. This is a testimony to the unique leadership of Peter Wycoff, a minister with a passion and a vision, who started the Federation and retired last year.

I worked very hard at Medicare reform as a member of the Senate, but never hard enough for Peter. When I retired he enlisted my help in creating the Medicare Justice Coalition which took the cause of inequitable variation in Medicare provider payments all the way to the U. S. Supreme Court. He created Senior Partners Care to provide health plan access for low and moderate income seniors. In recent years the Federation fought the Republican prescription drug plan giveaways to the drug industry and sponsored a bus to Canada for those needing low-cost prescriptions.

My favorite event of the year was being the Republican speaker at the annual meeting of the Federation. One year the Federation invited me and my Democratic colleague Paul Wellstone to speak, gave us each the ten questions they wanted us to answer and then, believe it or not, the ten answers they expected. I knew Paul would score ten and I'd get about three until the convention passed out red and green cards to 500 attendees and someone said: "Politicians always tell us what they think we want to hear. Let's give 'em each a chance to answer truthfully. If you think they were truthful, after each answer hold up a green card; if not, a red card." I remember each of us received 97 percent green cards, and the audience got one heck of an education.

HEALTH INSURANCE RULES
The most visible policy battles in health policy reform are over how best to introduce consumer choice, consumer protection, competition and coverage expansion into health care insurance. The debate is over whether everyone should have an FEHBP health plan like federal employees. Or whether people ought to be able to purchase health insurance anywhere in the country. Or whether a "public plan" should be created to keep competition among private plans honest. Or whether the Massachusetts model "Insurance Exchange" is the best way to aid consumers bedeviled by the details surrounding health care insurance. Or whether we simply expand Medicaid for low income people and Medicare for middle and upper income folks (i.e. two single payers).

The answer is "none of the above." Simply abandon the current system of government regulation of insurance markets at the 50 state level and introduce a few basic rules to guide insurer competition at the national level. This requires over-turning the McCarran-Ferguson Act of 1945 which overruled the U.S. Supreme Court decision declaring that the states may continue to regulate the insurance industry.

Instead the Democrats are proposing to require that all Americans own health insurance and that all employers with payroll in excess of $500,000 per year provide covered benefits like doctor, hospital, and drug services. The national government would determine a basic benefit and the coverage requirements including no stop loss. A national insurance exchange would facilitate consumer plan choices. And premium subsidies would be provided via income tax returns.

by Edward Koren

VIRTUAL COLONOSCOPY
For those of us older guys who've become accustomed to the old-fashioned colonoscopy, the news a few years ago that someone invented a more costly way to do the procedure without the invasive little camera didn't mean much. But to radiologists who saw this as another line of business, it was a big deal. One of them persuaded his Congressman Clay Shaw Jr. (R-FL) to do a last-minute amendment on an unrelated bill to increase the reimbursement for the extra costs involved in rewarding the virtual inventor.

The Medicare program has decided that the greater costs of virtual colonoscopy are not justified by its sponsored effectiveness research and will not pay the extra money manufacturers require. James Thrall M.D., chair of the American College of Radiology Board of Chancellors (What a title!!) is angry at Medicare. "Make no mistake, if let stand, this CMS decision…will cost lives." Republicans allege the decision is the first step in the government's efforts to restrain costs by denying patients' access to life-saving technology.

AFFORDABLE HEALTH CARE
Regular readers know of my affection for the country of Burundi and its 8 million citizens. In the "Great Lakes Region" of East Africa, Burundi is facing a health care crisis. Its 238 doctors are out on strike. They demand the government raise their salaries from $100 per month to $600 per month.

CONGRESS LIKELY TO PASS ON PHYSICIAN PAYMENT FIX
Of all the policy reform measures that would bring down health care costs permanently, without doing harm to patients (except in industry rhetoric, changing the payment formula for doctors under Medicare Part B is critical. As an author of the last cost containment fix of Pt B in 1989, I am well aware of the fault line in the so-called Relative Value Based payment formula. Which was exacerbated by so-called Volume Performance Standards (VPS subsequently and fatally modified as Sustainable Growth Rate SGR) annual pay adjustments to reflect over-utilization by physicians of medical services.

The RBRVS was designed to slow the increased economic rewards for sub-specialization but didn't do it because physicians were allowed to police themselves and HCFA/CMS didn't crack the whip. The VPS-SGR basically punished conservative practitioners who reduced unnecessary visits, diagnostics and surgeries, by reducing their payments by the amount that docs who practiced more medicine than necessary increased overall costs beyond an inflation formula.

Obama appears to be punting to the Congress on a new formula even though it faces a cost of $311 billion over 10 years to keep payments where they are currently. The Administration (which is OMB right now) is considering investing more money in fraud and abuse investigations and also considering taking physician-administered drugs out of Part B which would save $130 billion on the one hand, but it would show up somewhere else.

The answer is to match payment with practice. Differential payment to physicians according to the comparative utilization of services from one region of the country to another. Based on current data, and measured against a national average benchmark, such a formula can be used to encourage improvement in appropriate utilization of medically necessary services in "high performance regions" and discourage over-utilization in other regions.

HEALTH CARE ANTI-TRUST ENFORCEMENT
It's just possible that Christine Varner, the Assistant Attorney General for Anti-Trust in Justice, will have health care pricing policy high on her list as she attempt to do what the Bush Justice Dept gave up doing bringing enforcement actions on anti-trust issues. It's hard work. Even under Clinton, efforts to enforce especially hospital monopolization were beaten down by federal and state judges loath to see non-profit hospital mergers as anything but improved health care services.

But the consequences of not doing anything about the medical arms race in almost every community in America is quite serious. Leaving the task to voluntary efforts or to insurance companies has also proven impossible. So, I guess it's up to the government. Please don't call this one "socialized medicine." It's basic Adam Smith and getting people to play by the rules.

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