Christmas Eve Vote on Obamacare Showed Washington Still Has Shame

A decade ago this morning, 60 Senate Democrats cast their final votes approving the legislation that became Obamacare. The bill took a circuitous route to enactment after Scott Brown’s surprise victory in the Massachusetts Senate contest, which occurred a few weeks after the Senate vote, in January 2010.

Brown’s election meant Republicans gained a 41st Senate seat, giving them the necessary votes to filibuster a House-Senate conference report on Obamacare. Because Democrats lacked the 60 votes to overcome a filibuster, they eventually agreed to a process amending certain budgetary and fiscal elements of the Senate bill through the reconciliation process on a 51-vote threshold.

The grubby process leading up to Obamacare’s enactment, full of parochial politics and special interest pork, cost Democrats politically. But many Americans do not realize that such machinations occur all the time in Washington—indeed, occurred just last week. When one party participates in a corrupt process, it becomes a scandal; when both parties partake, few outside the Beltway bother to notice.

Backroom Deals

The process among Democrats leading up to the final health vote resembled an open market, with each Senator making “asks” of Majority Leader Harry Reid (D-NV). Reid needed all 60 Democrats to vote for Obamacare to break a Republican filibuster, and the parochial provisions included in the legislation showed the lengths he would go to enact it:

Cornhusker Kickback:” The most notorious of the backroom deals came after Sen. Ben Nelson (D-NE) requested a 100 percent Medicaid match rate for his home state of Nebraska. The final manager’s amendment introduced by Reid included this earmark—Nebraska would have its entire costs of Medicaid expansion paid for by the federal government forever. But the blowback from constituents and the press became so great that Nelson asked to have the provision removed; the reconciliation measure enacted in March 2010 gave Nebraska the same treatment as all other states.

Gator Aid:” This provision, inserted at the behest of Sen. Bill Nelson (D-FL), and later removed in the reconciliation bill, sought to exempt Florida seniors from much of the effects of the law’s Medicare Advantage cuts.

Louisiana Purchase:” This provision, included due to a request from Sen. Mary Landrieu (D-LA), adjusted the state’s Medicaid matching formula. Landrieu publicly defended the provision—which she said reflected the state’s circumstances after Hurricane Katrina—and it remained in law for several years, but was eventually phased out in legislation enacted February 2012.

While these three provisions captivated the public’s attention, other earmarks and pork provisions abounded inside Obamacare too—a Medicaid funding provision that helped Massachusetts; exemptions from the insurer tax for two Blue Cross carriers; a $100 million earmark for a Connecticut hospital, and health benefits for miners in Libby, Montana, courtesy of then-Senate Finance Committee Chairman Max Baucus (D-MT).

Not only did senators try to keep these corrupt deals in the legislation—notwithstanding the public outrage they engendered—but Reid defended both the earmarks and the horse-trading process that led to their inclusion:

I don’t know if there’s a senator who doesn’t have something in this bill that’s important to them. And if they don’t have something in it that’s important to them, then it doesn’t speak well for them.

It was a far cry from Barack Obama’s 2008 (broken) campaign promise to have all his health care negotiations televised on C-SPAN, “so we will know who is making arguments on behalf of their constituents, and who are making arguments on behalf of the drug companies or the insurance companies.” And it looked like Democrats didn’t really believe in the merits of the underlying legislation, but instead voted to restructure nearly one-fifth of the American economy because they got some comparatively minor pork project for their district back home.

Déjà Vu All Over Again

Democrats lost control of the House in the 2010 elections, and political scientists have attributed much of the loss to the impact of the Obamacare vote. One study found that Obamacare cost Democrats 6 percentage points of support in the 2010 midterm elections, and at least 13 seats in Congress.

But did the rebuke Democrats received for their behavior prompt them to change their ways? Only to the extent that, when they want to ram through a massive piece of legislation no one has bothered to read, they include Republicans in the taxpayer-funded largesse.

Consider last week’s $1.4 trillion spending package: Two bills totaling more than 2,300 pages, which lawmakers introduced on Monday and voted on in the House 24 hours later. Democrats wanted to repeal one set of Obamacare taxes—and in exchange, they agreed to repeal another set of taxes that Republicans (and their K Street lobbying friends) wanted gone. The Obamacare taxes went away, but the Obamacare spending remained, thus increasing the deficit by nearly $400 billion.

And both sides agreed to increase spending in defense and non-defense categories alike. Therein lies the true definition of bipartisanship in Washington: An agreement in which both sides get what they want—courtesy of taxpayers in the next generation, who get stuck with the bill.

It remains a sad commentary on the state of affairs in the nation’s capital that the Obamacare debacle remains an anomaly—the one time when the glare of the spotlight so seared Members seeking pork projects that they dared consider forsaking their ill-gotten gains. To paraphrase the axiom about casinos, in Washington, The Swamp (almost) always wins.

46 Reasons to Repeal an Unconstitutional Law NOW

46 50 Reasons to Repeal ALL of Obamacare NOW

Today the Supreme Court struck down portions of Obamacare as unconstitutional – states cannot be “dragooned” into expanding their Medicaid programs according to the law’s dictates. However, a list of 50 particularly onerous or egregious provisions in Obamacare (with sections from the statute duly noted) reveals just how much of this bad law remains. By the most generous interpretation, the Court struck down only four of the 50 egregious policies, illustrating why Congress should immediately repeal the entire measure once and for all. Among many other bad policies, the law:

  1. Imposes $800 billion in tax increases, including no fewer than 12 separate provisions breaking candidate Obama’s “firm pledge” during his campaign that he would not raise “any of your taxes” (Sections 9001-9016)
  2. Forces Americans to purchase a product for the first time ever (Section 1501)
  3. Creates a board of 15 unelected and unaccountable bureaucrats to make binding rulings on how to reduce Medicare spending (Section 3403)
  4. Pays over $800 billion in subsidies straight to health insurance companies (Sections 1401, 1402, and 1412)
  5. Requires all individuals to buy government-approved health insurance plans, imposing new mandates that will raise individual insurance premiums by an average of $2,100 per family (Section 1302)
  6. Forces seniors to lose their current health care, by enacting Medicare Advantage cuts that by 2017 will cut enrollment in half, and cut plan choices by two-thirds (Section 3201)
  7. Imposes a 40 percent tax on health benefits, a direct contradiction of Barack Obama’s campaign promises (Section 9001)
  8. Relies upon government bureaucrats to “issue guidance on best practices of plain language writing” (Section 1311(e)(3)(B))
  9. Provides special benefits to residents of Libby, Montana – home of Max Baucus, the powerful Chairman of the Senate Finance Committee, who helped write the law even though he says he hasn’t read it (Section 10323)
  10. Imposes what a Democrat Governor called the “mother of all unfunded mandates” – new, Washington-dictated requirements of at least $118 billion – at a time when states already face budget deficits totaling a collective $175 billion (Section 2001)
  11. Imposes reductions in Medicare spending that, according to the program’s non-partisan actuary, would cause 40 percent of all Medicare providers to become unprofitable, and could lead to their exit from the program (Section 3401)
  12. Raises premiums on more than 17 million seniors participating in Medicare Part D, so that Big Pharma can benefit from its “rock-solid deal” struck behind closed doors with President Obama and Congressional Democrats (Section 3301)
  13. Creates an institute to undertake research that, according to one draft Committee report prepared by Democrats, could mean that “more expensive [treatments] will no longer be prescribed” (Section 6301)
  14. Creates a multi-billion dollar “slush fund” doled out solely by federal bureaucrats, which has already been used to fund things like bike paths (Section 4002)
  15. Subjects states to myriad new lawsuits, by forcing them to assume legal liability for delivering services to Medicaid patients for the first time in that program’s history (Section 2304)
  16. Permits taxpayer dollars to flow to health plans that fund abortion, in a sharp deviation from prior practice under Democrat and Republican Administrations (Section 1303)
  17. Empowers bureaucrats on a board that has ruled against mammograms and against prostate cancer screenings to make binding determinations about what types of preventive services should be covered (Sections 2713 and 4104)
  18. Precludes poor individuals from having a choice of health care plans by automatically dumping them in the Medicaid program (Section 1413(a))
  19. Creates a new entitlement program that one Democrat called “a Ponzi scheme of the first order, the kind of thing that Bernie Madoff would have been proud of” – a scheme so unsustainable even the Administration was forced to admit it would not work (Section 8002)
  20. Provides $5 billion in taxpayer dollars to a fund that has largely served to bail out unions and other organizations who made unsustainable health care promises to retirees that they cannot afford (Section 1102)
  21. Creates a tax credit so convoluted it requires seven different worksheets to determine eligibility (Section 1421)
  22. Imposes multiple penalties on those who marry, by reducing subsidies (and increasing taxes) for married couples when compared to two individuals cohabiting together (Sections 1401-02)
  23. Extends the Medicare “payroll tax” to unearned income for the first time ever, including new taxes on the sale of some homes (Section 1402)
  24. Impedes state flexibility by requiring Medicaid programs to offer a specific package of benefits, including benefits like family planning services (Sections 2001(a)(2), 2001(c), 1302(b), and 2303(c))
  25. Requires individuals to go to the doctor and get a prescription in order to spend their own Flexible Spending Account money on over-the-counter medicines (Section 9003)
  26. Expands the definition of “low-income” to make 63 percent of non-elderly Americans eligible for “low-income” subsidized insurance (Section 1401)
  27. Imposes a new tax on the makers of goods like pacemakers and hearing aids (Section 9009)
  28. Creates an insurance reimbursement scheme that could result in the federal government obtaining Americans’ medical records (Section 1343)
  29. Permits states to make individuals presumptively eligible for Medicaid for unlimited 60-day periods, thus allowing any individual to receive taxpayer-funded assistance ad infinitum (Section 2303(b))
  30. Allows individuals to purchase insurance on government exchanges – and to receive taxpayer-funded insurance subsidies – WITHOUT verifying their identity as American citizens (Section 1411)
  31. Gives $300 million in higher Medicaid reimbursements to one state as part of the infamous “Louisiana Purchase” – described by ABC News as “what…it take[s] to get a wavering senator to vote for health care reform” (Section 2006)
  32. Raises taxes on firms who cannot afford to buy coverage for their workers (Section 1513)
  33. Forces younger Americans to pay double-digit premium increases so that older workers can pay slightly less (Section 1201)
  34. Prohibits states from modifying their Medicaid programs to include things like modest anti-fraud protections (Section 2001)
  35. Includes a special provision increasing federal payments just for Tennessee (Section 1203(b))
  36. Allows individuals to purchase health insurance across state lines – but only if politicians and bureaucrats agree to allow citizens this privilege (Section 1333)
  37. Allows the HHS Secretary and federal bureaucrats to grant waivers exempting people from Obamacare’s onerous mandates, over half of which have gone to members of union plans (Section 1001)
  38. Creates a pseudo-government-run plan overseen by the federal government (Section 1334)
  39. Removes a demonstration project designed to force government-run Medicare to compete on a level playing field with private plans (Section 1102(f))
  40. Gives the Secretary of HHS an UNLIMITED amount of federal funds to spend funding state insurance Exchanges (Section 1311(a))
  41. Creates a grant program that could be used by liberal groups like ACORN or AARP to conduct “public education activities” surrounding Obamacare (Section 1311(i))
  42. Applies new federal mandates to pre-Obamacare insurance policies, thus proving that you CAN’T keep the insurance plan you had – and liked – before the law passed (Sections 2301 and 10103)
  43. Prohibits individuals harmed by federal bureaucrats from challenging those decisions, either in court or through regulatory processes (Sections 3001, 3003, 3007, 3008, 3021, 3022, 3025, 3133, 3403, 5501, 6001, and 6401)
  44. Earmarks $100 million for “construction of a health care facility,” a “sweetheart deal” inserted by a Democrat Senator trying to win re-election (Section 10502)
  45. Puts yet another Medicaid unfunded mandate on states, by raising payments to primary care physicians, but only for two years, forcing states to come up with another method of funding this unsustainable promise when federal funding expires (Section 1202)
  46. Imposes price controls that have had the effect of costing jobs in the short time since they were first implemented (Section 1001)
  47. Prohibits individuals from spending federal insurance subsidies outside government-approved Exchanges (Section 1401(a))
  48. Provides a special increase in federal hospital payments just for Hawaii (Section 10201(e)(1))
  49. Imposes new reporting requirements that will cost businesses millions of dollars, and affect thousands of restaurants and other establishments across the country (Section 4205)
  50. Codifies 159 new boards, bureaucracies, and programs

The Supreme Court may have struck some of these onerous provisions, but the only way to ensure that ALL these provisions are eliminated – and never return – is to repeal ALL of this unconstitutional law immediately.

208 Things in Obamacare that Obama and Democrats Support

Last week, former HELP Committee staffer John McDonough wrote a list of “50 provisions I ask the media to ask Romney et al. if they are committed to repealing as President.”  McDonough noted that “there are [Obamacare] provisions opponents could pick out to create an alternative list for elimination.”

We here at RPC know a challenge when we hear one; our list is submitted below, with sections from the statute duly noted.  Remember when reading this list:  We KNOW that President Obama and Democrats all support these provisions in Obamacare – because they all voted to enact them into law.  So members of the media can readily ask President Obama and Democrat Members of Congress why they supported a law that…

  1. Imposes $800 billion in tax increases, including no fewer than 12 separate provisions breaking candidate Obama’s “firm pledge” during his campaign that he would not raise “any of your taxes” (Sections 9001-9016)?
  2. Forces Americans to purchase a product for the first time ever (Section 1501)?
  3. Creates a board of 15 unelected and unaccountable bureaucrats to make binding rulings on how to reduce Medicare spending (Section 3403)?
  4. Pays over $800 billion in subsidies straight to health insurance companies (Sections 1401, 1402, and 1412)?
  5. Requires all individuals to buy government-approved health insurance plans, imposing new mandates that will raise individual insurance premiums by an average of $2,100 per family (Section 1302)?
  6. Forces seniors to lose their current health care, by enacting Medicare Advantage cuts that by 2017 will cut enrollment in half, and cut plan choices by two-thirds (Section 3201)?
  7. Imposes a 40 percent tax on health benefits, a direct contradiction of Barack Obama’s campaign promises (Section 9001)?
  8. Relies upon government bureaucrats to “issue guidance on best practices of plain language writing” (Section 1311(e)(3)(B))?
  9. Provides special benefits to residents of Libby, Montana – home of Max Baucus, the powerful Chairman of the Senate Finance Committee, who helped write the law even though he says he hasn’t read it (Section 10323)?
  10. Imposes what a Democrat Governor called the “mother of all unfunded mandates” – new, Washington-dictated requirements of at least $118 billion – at a time when states already face budget deficits totaling a collective $175 billion (Section 2001)?
  11. Imposes reductions in Medicare spending that, according to the program’s non-partisan actuary, would cause 40 percent of all Medicare providers to become unprofitable, and could lead to their exit from the program (Section 3401)?
  12. Raises premiums on more than 17 million seniors participating in Medicare Part D, so that Big Pharma can benefit from its “rock-solid deal” struck behind closed doors with President Obama and Congressional Democrats (Section 3301)?
  13. Creates an institute to undertake research that, according to one draft Committee report prepared by Democrats, could mean that “more expensive [treatments] will no longer be prescribed” (Section 6301)?
  14. Creates a multi-billion dollar “slush fund” doled out solely by federal bureaucrats, which has already been used to fund things like bike paths (Section 4002)?
  15. Subjects states to myriad new lawsuits, by forcing them to assume legal liability for delivering services to Medicaid patients for the first time in that program’s history (Section 2304)?
  16. Permits taxpayer dollars to flow to health plans that fund abortion, in a sharp deviation from prior practice under Democrat and Republican Administrations (Section 1303)?
  17. Empowers bureaucrats on a board that has ruled against mammograms and against prostate cancer screenings to make binding determinations about what types of preventive services should be covered (Sections 2713 and 4104)?
  18. Precludes poor individuals from having a choice of health care plans by automatically dumping them in the Medicaid program (Section 1413(a))?
  19. Creates a new entitlement program that one Democrat called “a Ponzi scheme of the first order, the kind of thing that Bernie Madoff would have been proud of” – a scheme so unsustainable even the Administration was forced to admit it would not work (Section 8002)?
  20. Provides $5 billion in taxpayer dollars to a fund that has largely served to bail out unions and other organizations who made unsustainable health care promises to retirees that they cannot afford (Section 1102)?
  21. Creates a tax credit so convoluted it requires seven different worksheets to determine eligibility (Section 1421)?
  22. Imposes multiple penalties on those who marry, by reducing subsidies (and increasing taxes) for married couples when compared to two individuals cohabiting together (Sections 1401-02)?
  23. Extends the Medicare “payroll tax” to unearned income for the first time ever, including new taxes on the sale of some homes (Section 1402)?
  24. Impedes state flexibility by requiring Medicaid programs to offer a specific package of benefits, including benefits like family planning services (Sections 2001(a)(2), 2001(c), 1302(b), and 2303(c))?
  25. Requires individuals to go to the doctor and get a prescription in order to spend their own Flexible Spending Account money on over-the-counter medicines (Section 9003)?
  26. Expands the definition of “low-income” to make 63 percent of non-elderly Americans eligible for “low-income” subsidized insurance (Section 1401)?
  27. Imposes a new tax on the makers of goods like pacemakers and hearing aids (Section 9009)?
  28. Creates an insurance reimbursement scheme that could result in the federal government obtaining Americans’ medical records (Section 1343)?
  29. Permits states to make individuals presumptively eligible for Medicaid for unlimited 60-day periods, thus allowing any individual to receive taxpayer-funded assistance ad infinitum (Section 2303(b))?
  30. Allows individuals to purchase insurance on government exchanges – and to receive taxpayer-funded insurance subsidies – WITHOUT verifying their identity as American citizens (Section 1411)?
  31. Gives $300 million in higher Medicaid reimbursements to one state as part of the infamous “Louisiana Purchase” – described by ABC News as “what…it take[s] to get a wavering senator to vote for health care reform” (Section 2006)?
  32. Raises taxes on firms who cannot afford to buy coverage for their workers (Section 1513)?
  33. Forces younger Americans to pay double-digit premium increases so that older workers can pay slightly less (Section 1201)?
  34. Prohibits states from modifying their Medicaid programs to include things like modest anti-fraud protections (Section 2001)?
  35. Includes a special provision increasing federal payments just for Tennessee (Section 1203(b))?
  36. Allows individuals to purchase health insurance across state lines – but only if politicians and bureaucrats agree to allow citizens this privilege (Section 1333)?
  37. Allows the HHS Secretary and federal bureaucrats to grant waivers exempting people from Obamacare’s onerous mandates, over half of which have gone to members of union plans (Section 1001)?
  38. Creates a pseudo-government-run plan overseen by the federal government (Section 1334)?
  39. Removes a demonstration project designed to force government-run Medicare to compete on a level playing field with private plans (Section 1102(f))?
  40. Gives the Secretary of HHS an UNLIMITED amount of federal funds to spend funding state insurance Exchanges (Section 1311(a))?
  41. Creates a grant program that could be used by liberal groups like ACORN or AARP to conduct “public education activities” surrounding Obamacare (Section 1311(i))?
  42. Applies new federal mandates to pre-Obamacare insurance policies, thus proving that you CAN’T keep the insurance plan you had – and liked – before the law passed (Sections 2301 and 10103)?
  43. Prohibits individuals harmed by federal bureaucrats from challenging those decisions, either in court or through regulatory processes (Sections 3001, 3003, 3007, 3008, 3021, 3022, 3025, 3133, 3403, 5501, 6001, AND 6401)?
  44. Earmarks $100 million for “construction of a health care facility,” a “sweetheart deal” inserted by a Democrat Senator trying to win re-election (Section 10502)?
  45. Puts yet another Medicaid unfunded mandate on states, by raising payments to primary care physicians, but only for two years, forcing states to come up with another method of funding this unsustainable promise when federal funding expires (Section 1202)?
  46. Imposes price controls that have had the effect of costing jobs in the short time since they were first implemented (Section 1001)?
  47. Prohibits individuals from spending federal insurance subsidies outside government-approved Exchanges (Section 1401(a))?
  48. Provides a special increase in federal hospital payments just for Hawaii (Section 10201(e)(1))?
  49. Imposes new reporting requirements that will cost businesses millions of dollars, and affect thousands of restaurants and other establishments across the country (Section 4205)?

And instead of including a 50th item on our list, we’re going to include 159 separate items.  These are the 159 new boards, bureaucracies, and programs created by Obamacare.  You can find the list below, or here.

No matter which way you look at it, this list provides 208 easy reasons why the American people still continue to reject Democrats’ unpopular 2700-page health care law.

 

Obamacare’s 159 New Boards, Bureaucracies, Commissions, and Programs

  1. Grant program for consumer assistance offices (Section 1002, p. 37)
  2. Grant program for states to monitor premium increases (Section 1003, p. 42)
  3. Committee to review administrative simplification standards (Section 1104, p. 71)
  4. Demonstration program for state wellness programs (Section 1201, p. 93)
  5. Grant program to establish state Exchanges (Section 1311(a), p. 130)
  6. State American Health Benefit Exchanges (Section 1311(b), p. 131)
  7. Exchange grants to establish consumer navigator programs (Section 1311(i), p. 150)
  8. Grant program for state cooperatives (Section 1322, p. 169)
  9. Advisory board for state cooperatives (Section 1322(b)(3), p. 173)
  10. Private purchasing council for state cooperatives (Section 1322(d), p. 177)
  11. State basic health plan programs (Section 1331, p. 201)
  12. State-based reinsurance program (Section 1341, p. 226)
  13. Program of risk corridors for individual and small group markets (Section 1342, p. 233)
  14. Program to determine eligibility for Exchange participation (Section 1411, p. 267)
  15. Program for advance determination of tax credit eligibility (Section 1412, p. 288)
  16. Grant program to implement health IT enrollment standards (Section 1561, p. 370)
  17. Federal Coordinated Health Care Office for dual eligible beneficiaries (Section 2602, p. 512)
  18. Medicaid quality measurement program (Section 2701, p. 518)
  19. Medicaid health home program for people with chronic conditions, and grants for planning same (Section 2703, p. 524)
  20. Medicaid demonstration project to evaluate bundled payments (Section 2704, p. 532)
  21. Medicaid demonstration project for global payment system (Section 2705, p. 536)
  22. Medicaid demonstration project for accountable care organizations (Section 2706, p. 538)
  23. Medicaid demonstration project for emergency psychiatric care (Section 2707, p. 540)
  24. Grant program for delivery of services to individuals with postpartum depression (Section 2952(b), p. 591)
  25. State allotments for grants to promote personal responsibility education programs (Section 2953, p. 596)
  26. Medicare value-based purchasing program (Section 3001(a), p. 613)
  27. Medicare value-based purchasing demonstration program for critical access hospitals (Section 3001(b), p. 637)
  28. Medicare value-based purchasing program for skilled nursing facilities (Section 3006(a), p. 666)
  29. Medicare value-based purchasing program for home health agencies (Section 3006(b), p. 668)
  30. Interagency Working Group on Health Care Quality (Section 3012, p. 688)
  31. Grant program to develop health care quality measures (Section 3013, p. 693)
  32. Center for Medicare and Medicaid Innovation (Section 3021, p. 712)
  33. Medicare shared savings program (Section 3022, p. 728)
  34. Medicare pilot program on payment bundling (Section 3023, p. 739)
  35. Independence at home medical practice demonstration program (Section 3024, p. 752)
  36. Program for use of patient safety organizations to reduce hospital readmission rates (Section 3025(b), p. 775)
  37. Community-based care transitions program (Section 3026, p. 776)
  38. Demonstration project for payment of complex diagnostic laboratory tests (Section 3113, p. 800)
  39. Medicare hospice concurrent care demonstration project (Section 3140, p. 850)
  40. Independent Payment Advisory Board (Section 3403, p. 982)
  41. Consumer Advisory Council for Independent Payment Advisory Board (Section 3403, p. 1027)
  42. Grant program for technical assistance to providers implementing health quality practices (Section 3501, p. 1043)
  43. Grant program to establish interdisciplinary health teams (Section 3502, p. 1048)
  44. Grant program to implement medication therapy management (Section 3503, p. 1055)
  45. Grant program to support emergency care pilot programs (Section 3504, p. 1061)
  46. Grant program to promote universal access to trauma services (Section 3505(b), p. 1081)
  47. Grant program to develop and promote shared decision-making aids (Section 3506, p. 1088)
  48. Grant program to support implementation of shared decision-making (Section 3506, p. 1091)
  49. Grant program to integrate quality improvement in clinical education (Section 3508, p. 1095)
  50. Health and Human Services Coordinating Committee on Women’s Health (Section 3509(a), p. 1098)
  51. Centers for Disease Control Office of Women’s Health (Section 3509(b), p. 1102)
  52. Agency for Healthcare Research and Quality Office of Women’s Health (Section 3509(e), p. 1105)
  53. Health Resources and Services Administration Office of Women’s Health (Section 3509(f), p. 1106)
  54. Food and Drug Administration Office of Women’s Health (Section 3509(g), p. 1109)
  55. National Prevention, Health Promotion, and Public Health Council (Section 4001, p. 1114)
  56. Advisory Group on Prevention, Health Promotion, and Integrative and Public Health (Section 4001(f), p. 1117)
  57. Prevention and Public Health Fund (Section 4002, p. 1121)
  58. Community Preventive Services Task Force (Section 4003(b), p. 1126)
  59. Grant program to support school-based health centers (Section 4101, p. 1135)
  60. Grant program to promote research-based dental caries disease management (Section 4102, p. 1147)
  61. Grant program for States to prevent chronic disease in Medicaid beneficiaries (Section 4108, p. 1174)
  62. Community transformation grants (Section 4201, p. 1182)
  63. Grant program to provide public health interventions (Section 4202, p. 1188)
  64. Demonstration program of grants to improve child immunization rates (Section 4204(b), p. 1200)
  65. Pilot program for risk-factor assessments provided through community health centers (Section 4206, p. 1215)
  66. Grant program to increase epidemiology and laboratory capacity (Section 4304, p. 1233)
  67. Interagency Pain Research Coordinating Committee (Section 4305, p. 1238)
  68. National Health Care Workforce Commission (Section 5101, p. 1256)
  69. Grant program to plan health care workforce development activities (Section 5102(c), p. 1275)
  70. Grant program to implement health care workforce development activities (Section 5102(d), p. 1279)
  71. Pediatric specialty loan repayment program (Section 5203, p. 1295)
  72. Public Health Workforce Loan Repayment Program (Section 5204, p. 1300)
  73. Allied Health Loan Forgiveness Program (Section 5205, p. 1305)
  74. Grant program to provide mid-career training for health professionals (Section 5206, p. 1307)
  75. Grant program to fund nurse-managed health clinics (Section 5208, p. 1310)
  76. Grant program to support primary care training programs (Section 5301, p. 1315)
  77. Grant program to fund training for direct care workers (Section 5302, p. 1322)
  78. Grant program to develop dental training programs (Section 5303, p. 1325)
  79. Demonstration program to increase access to dental health care in underserved communities (Section 5304, p. 1331)
  80. Grant program to promote geriatric education centers (Section 5305, p. 1334)
  81. Grant program to promote health professionals entering geriatrics (Section 5305, p. 1339)
  82. Grant program to promote training in mental and behavioral health (Section 5306, p. 1344)
  83. Grant program to promote nurse retention programs (Section 5309, p. 1354)
  84. Student loan forgiveness for nursing school faculty (Section 5311(b), p. 1360)
  85. Grant program to promote positive health behaviors and outcomes (Section 5313, p. 1364)
  86. Public Health Sciences Track for medical students (Section 5315, p. 1372)
  87. Primary Care Extension Program to educate providers (Section 5405, p. 1404)
  88. Grant program for demonstration projects to address health workforce shortage needs (Section 5507, p. 1442)
  89. Grant program for demonstration projects to develop training programs for home health aides (Section 5507, p. 1447)
  90. Grant program to establish new primary care residency programs (Section 5508(a), p. 1458)
  91. Program of payments to teaching health centers that sponsor medical residency training (Section 5508(c), p. 1462)
  92. Graduate nurse education demonstration program (Section 5509, p. 1472)
  93. Grant program to establish demonstration projects for community-based mental health settings (Section 5604, p. 1486)
  94. Commission on Key National Indicators (Section 5605, p. 1489)
  95. Quality assurance and performance improvement program for skilled nursing facilities (Section 6102, p. 1554)
  96. Special focus facility program for skilled nursing facilities (Section 6103(a)(3), p. 1561)
  97. Special focus facility program for nursing facilities (Section 6103(b)(3), p. 1568)
  98. National independent monitor pilot program for skilled nursing facilities and nursing facilities (Section 6112, p. 1589)
  99. Demonstration projects for nursing facilities involved in the culture change movement (Section 6114, p. 1597)
  100. Patient-Centered Outcomes Research Institute (Section 6301, p. 1619)
  101. Standing methodology committee for Patient-Centered Outcomes Research Institute (Section 6301, p. 1629)
  102. Board of Governors for Patient-Centered Outcomes Research Institute (Section 6301, p. 1638)
  103. Patient-Centered Outcomes Research Trust Fund (Section 6301(e), p. 1656)
  104. Elder Justice Coordinating Council (Section 6703, p. 1773)
  105. Advisory Board on Elder Abuse, Neglect, and Exploitation (Section 6703, p. 1776)
  106. Grant program to create elder abuse forensic centers (Section 6703, p. 1783)
  107. Grant program to promote continuing education for long-term care staffers (Section 6703, p. 1787)
  108. Grant program to improve management practices and training (Section 6703, p. 1788)
  109. Grant program to subsidize costs of electronic health records (Section 6703, p. 1791)
  110. Grant program to promote adult protective services (Section 6703, p. 1796)
  111. Grant program to conduct elder abuse detection and prevention (Section 6703, p. 1798)
  112. Grant program to support long-term care ombudsmen (Section 6703, p. 1800)
  113. National Training Institute for long-term care surveyors (Section 6703, p. 1806)
  114. Grant program to fund State surveys of long-term care residences (Section 6703, p. 1809)
  115. CLASS Independence Fund (Section 8002, p. 1926)
  116. CLASS Independence Fund Board of Trustees (Section 8002, p. 1927)
  117. CLASS Independence Advisory Council (Section 8002, p. 1931)
  118. Personal Care Attendants Workforce Advisory Panel (Section 8002(c), p. 1938)
  119. Multi-state health plans offered by Office of Personnel Management (Section 10104(p), p. 2086)
  120. Advisory board for multi-state health plans (Section 10104(p), p. 2094)
  121. Pregnancy Assistance Fund (Section 10212, p. 2164)
  122. Value-based purchasing program for ambulatory surgical centers (Section 10301, p. 2176)
  123. Demonstration project for payment adjustments to home health services (Section 10315, p. 2200)
  124. Pilot program for care of individuals in environmental emergency declaration areas (Section 10323, p. 2223)
  125. Grant program to screen at-risk individuals for environmental health conditions (Section 10323(b), p. 2231)
  126. Pilot programs to implement value-based purchasing (Section 10326, p. 2242)
  127. Grant program to support community-based collaborative care networks (Section 10333, p. 2265)
  128. Centers for Disease Control Office of Minority Health (Section 10334, p. 2272)
  129. Health Resources and Services Administration Office of Minority Health (Section 10334, p. 2272)
  130. Substance Abuse and Mental Health Services Administration Office of Minority Health (Section 10334, p. 2272)
  131. Agency for Healthcare Research and Quality Office of Minority Health (Section 10334, p. 2272)
  132. Food and Drug Administration Office of Minority Health (Section 10334, p. 2272)
  133. Centers for Medicare and Medicaid Services Office of Minority Health (Section 10334, p. 2272)
  134. Grant program to promote small business wellness programs (Section 10408, p. 2285)
  135. Cures Acceleration Network (Section 10409, p. 2289)
  136. Cures Acceleration Network Review Board (Section 10409, p. 2291)
  137. Grant program for Cures Acceleration Network (Section 10409, p. 2297)
  138. Grant program to promote centers of excellence for depression (Section 10410, p. 2304)
  139. Advisory committee for young women’s breast health awareness education campaign (Section 10413, p. 2322)
  140. Grant program to provide assistance to provide information to young women with breast cancer (Section 10413, p. 2326)
  141. Interagency Access to Health Care in Alaska Task Force (Section 10501, p. 2329)
  142. Grant program to train nurse practitioners as primary care providers (Section 10501(e), p. 2332)
  143. Grant program for community-based diabetes prevention (Section 10501(g), p. 2337)
  144. Grant program for providers who treat a high percentage of medically underserved populations (Section 10501(k), p. 2343)
  145. Grant program to recruit students to practice in underserved communities (Section 10501(l), p. 2344)
  146. Community Health Center Fund (Section 10503, p. 2355)
  147. Demonstration project to provide access to health care for the uninsured at reduced fees (Section 10504, p. 2357)
  148. Demonstration program to explore alternatives to tort litigation (Section 10607, p. 2369)
  149. Indian Health demonstration program for chronic shortages of health professionals (S. 1790, Section 112, p. 24)*
  150. Office of Indian Men’s Health (S. 1790, Section 136, p. 71)*
  151. Indian Country modular component facilities demonstration program (S. 1790, Section 146, p. 108)*
  152. Indian mobile health stations demonstration program (S. 1790, Section 147, p. 111)*
  153. Office of Direct Service Tribes (S. 1790, Section 172, p. 151)*
  154. Indian Health Service mental health technician training program (S. 1790, Section 181, p. 173)*
  155. Indian Health Service program for treatment of child sexual abuse victims (S. 1790, Section 181, p. 192)*
  156. Indian Health Service program for treatment of domestic violence and sexual abuse (S. 1790, Section 181, p. 194)*
  157. Indian youth telemental health demonstration project (S. 1790, Section 181, p. 204)*
  158. Indian youth life skills demonstration project (S. 1790, Section 181, p. 220)*
  159. Indian Health Service Director of HIV/AIDS Prevention and Treatment (S. 1790, Section 199B, p. 258)*

 

*Section 10221, page 2173 of H.R. 3590 deems that S. 1790 shall be deemed as passed with certain amendments.

AARP Misleads on Medicare

In case you hadn’t seen it, the Washington Post this morning awarded Four Pinocchios to AARP for its ad campaign regarding Medicare and Social Security.  Here’s the key passage:

The AARP ad perpetuates the worst stereotypes about how easy it would be to balance the budget.  At a time when the nation’s fiscal crisis—amid the looming retirement of the baby-boom generation—demands informed and reasoned debate, the AARP misinforms its members about the choices the nation faces.  The choice is not between shrimp treadmills and Medicare; the question is how growth in the big entitlement programs can be restrained to accommodate the baby-boom generation without harming the elderly already receiving benefits.

As indicated above, the ad implies that the federal budget can be balanced just by cutting earmarks, a claim that even AARP acknowledged was a stretch: “No one would suggest that these three things or even similar projects would balance the budget….This is a 30-second ad to catch people’s attention.  We don’t have time to educate people over what’s going on.”

The Post piece notes that the four earmarks and projects profiled in the ad totaled a combined $149 million in federal spending.  That’s only about one-third of the more than $441 million AARP earned in royalty fees from selling Medigap and other health insurance policies just last year, according to its own financial statements.  Yet ironically enough, the ads don’t mention the size of AARP’s largesse – what its own members have dubbed kickbacks – compared to the wasteful federal spending discussed in the ad.  It’s also ironic that an organization that receives nearly half a billion dollars a year in revenue from United Health Care – funds that represent pure profit to the organization – apparently thinks it doesn’t have the time or resources to educate people about the true sources of America’s entitlement crisis.

Friday’s headlines were filled with stories regarding the organization’s (apparent) change of position on Social Security reform.  But if AARP wants to be seen as a responsible stakeholder, misleading ads like those exposed this morning won’t help the organization, and most importantly, won’t solve America’s entitlement problems – which, if unaddressed, will soon hit millions of American seniors.

Update on Continuing Resolution

The House just passed a two-week continuing resolution by a vote of 335-91.  The bill would fund federal government operations through March 18, 2010, while reducing spending by $4 billion.  The bill includes spending reductions for several health-related accounts within the Department of Health and Human Services – all of which relate to funds previously devoted to earmarks.  Specifically, the bill’s text would eliminate earmark accounts included in the 2010 Consolidated Appropriations Act – $20.6 million in earmarks within the Centers for Disease Control, $14.5 million in earmarks within the Substance Abuse and Mental Health Services Administration, $3.1 million in earmarks within the Centers for Medicare and Medicaid Services program management account, and $397 million largely from three earmark accounts within the Health Resources and Services Administration.

As press reports indicate, the Senate is expected to take up the measure in the near future.

Health Care and Judicial Activism

Obviously, the Florida court ruling striking down the health care law as unconstitutional leads today’s headlines.  A quick digest of stories from the major press outlets includes those from the AP, the Washington Post, the New York Times, the LA Times, and USA Today.  The Wall Street Journal, in addition to its summary, also has an analysis of the implications of the suit on the commerce clause (and vice versa), as well as an editorial praising the decision.  Politico has a summary, a preview of a potential Supreme Court review of the individual mandate, and a primer on the political implications of the ruling.  CQ speculates on how the ruling might affect implementation, and The Hill discusses Democrats’ options on the individual mandate.

It’s also worth taking some time to examine the ruling itself, given that the White House and others have called it a work of “judicial activism,” specifically because it strikes down the ENTIRE bill, as opposed to just the individual mandate.  While the usual practice of courts is to strike down only the unconstitutional provisions, the Administration has argued in its defense of the law that the individual mandate is “essential” to the other health insurance reforms.  (An October Wall Street Journal piece at the time of the Virginia ruling noted the contradictions inherent in the government’s legal defense – whereby the Administration argued that other portions of the law, like the student loan provisions included in reconciliation, should not be struck down, even at the same time asserting that the mandate is part of a larger health regulatory scheme, and the law cannot stand without the mandate left intact.)  Determining what portions should be stricken requires a test of whether the remaining portions “can function independently” in a manner “consistent with the intent of Congress,” and a review of the statute to determine whether the remaining portions would have been preferable to no law at all. (See the discussion at pages 65-66 of the ruling.)

Congress explicitly rejected a severability clause for the enacted version of the law – the House introduced bill (H.R. 3200) and House-passed measure (H.R. 3962) both included severability clauses, but the Senate version that the President sign did not.  The ruling cites prior Supreme Court precedent to conclude that Congress’ decision specifically to omit a severability clause was important, given the questions surrounding constitutionality at the time of the bill’s consideration.  In addition, a textual analysis of both the briefs in the case and other public comments indicates a strong emphasis by advocates of the legislation on the “affordability” provisions of “health insurance reform,” indicating the law’s own advocates consider these provisions the lynchpin of the statute.  (Put another way, how many times have you seen Members making floor speeches about the bone density provisions in Section 3111 of the statute?  While this provision and others may be able to stand without a mandate, they don’t represent the major thrust of the measure, by any stretch.)

When it comes to whether the remaining portions would have been preferable to no law at all, there are some instructive examples to consider:

  • CLASS Act:  This new, unsustainable entitlement specifically failed to obtain a majority vote on the floor of the Senate; 11 Democrats rejected it, including Budget Committee Chairman Kent Conrad, who famously called it “a Ponzi scheme of the first order, the kind of thing that Bernie Madoff would have been proud of.”  This program obviously would not have stood on its own without being linked to the health insurance provisions in the broader bill.
  • Indian Health Service (IHS) Reauthorization:  This 300-page bill was NOT subjected to a separate vote in either the House or the Senate – then-Speaker Pelosi added the measure to the House-passed measure (H.R. 3962) after the standing committees had completed their deliberations, and Majority Leader Reid included the measure as part of a larger manager’s package on the Senate floor.  It’s worth pointing out that Speaker Pelosi had deliberately refused to bring the measure to the House floor for several years, because pro-life Democrats likely had the votes to attach restrictions on abortion funding to the measure.  The last-minute inclusion of the IHS provisions was likely to allow the bill to “piggy-back” on the insurance reform measure – meaning it’s unlikely a stand-alone bill along the lines of the provisions in the statute would have been enacted on its own.
  • Backroom Deals:  Does anyone believe that Congress would have taken time to enact the “Louisiana Purchase,” the “U-CONN” hospital earmark, and all the other special deals in the legislation as stand-alone bills?
  • 1099:  As the ruling pointed out, the 1099 paperwork mandate is one of the stand-alone provisions that clearly has no link to the health insurance provisions (or anything health care related, for that matter).  Yet Democrats and President Obama have called for its repeal.  Should a judge uphold the 1099 provision on the grounds that it’s not related to the insurance regulations and individual mandate, or strike the provision on the grounds that even the bill’s writers have now disclaimed authorship of it?

While only the 1099 provision is specifically referenced in the ruling, it perfectly illustrates why the ruling struck down the entire law – because it requires a judge to attempt to divine Congressional intent.  As the ruling notes at pages 72-73:

Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it….Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen [sic] and unpredictable. For me to try and “second guess” what Congress would want to keep is almost impossible.

For these reasons, yesterday’s ruling represents NOT an example of judicial activism, but of judicial modesty – a judge admitting he cannot (and should not) unilaterally attempt to ascertain Congressional intent.

Bloggers like Ezra Klein (the noted constitutional scholar) have argued that striking down the whole law is the work of an “activist in the extreme,” relying on a passage on page 74 of the ruling, where Judge Vinson discusses the “‘normal rule’ rule that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute,” and notes that “this [ruling] is not a situation that is likely to be repeated.”  Klein’s comments miss a key point – the Administration has itself conceded that the bill violates the “normal rule,” by admitting the insurance restrictions CANNOT stand without an (unconstitutional) individual mandate.  (For the record, Klein himself has stated that the insurance regulations would be ineffective without a mandate, effectively agreeing with Judge Vinson that the mandate affects other significant portions of the law.)  Therefore, by the Administration’s own argument, more of the law than just the offending provision (i.e., the mandate) must be struck down – and the Judge engaged in what this morning’s WSJ editorial rightly termed “an act of judicial modesty” by not attempting to divine what portions of the law can stand and what portions must fall.

As to the ruling’s comment that “this is not a situation that is likely to be repeated,” that speaks to the gargantuan nature of the legislation itself.  (Do those citing this passage believe Congress should start passing 2,700-page comprehensive bills every week?)  Moreover, as the ruling indicates, “the question of severability ultimately turns on the nature of the statute at issue.”  In other words, a textual analysis of the statute at issue is ALWAYS required, meaning that by definition the situation facing this particular court will not be repeated.

Yesterday’s ruling striking down the entire law was an example where a judge – facing agreement from both parties that the individual mandate was inextricably linked to other significant portions of the statute – decided NOT to impose his judgment for that of Congress in deciding what specific provisions should and should not stand.  Where Democrats call such a step judicial activism, many Republicans may view such a ruling as an example of judicial modesty.

Omnibus Includes More Than $1 Billion in Obamacare Funding

The recently released omnibus appropriations measure – which would spend more than $1.25 trillion in this fiscal year – includes $1,009,677,000 in funding to implement Democrats’ unpopular health care law.  That funding includes:

  • An increase of more than $80.7 million in the Department of Health and Human Services’ Departmental Management account, to enforce the new insurance mandates and regulations created in the law.  This $80 million “plus-up” is also significantly higher than the $44.9 million increase proposed in Democrats’ year-long CR.  (Provision found on page 1015 of the legislation.)
  • An increase of over $175.9 million in the Centers for Medicare and Medicaid Services’ Program Management account, to implement the massive Medicaid expansion and cuts to Medicare Advantage.  (Provision found on pages 1000-1001 of the legislation.)
  • Spending of $750 million from the Prevention and Public Health “slush fund” created in the law.  Among the programs receiving “slush fund” dollars are the new community transformation grant programs, which “could provide billions of dollars for walking paths, streetlights, jungle gyms, and even farmers’ markets,” provisions that have caused controversy.  (Provisions found on pages 983, 988-89, 998, and 999 of the legislation.)
  • Funding of $3 million for the National Health Care Workforce Commission created in the law, just one of the 159 boards, bureaucracies, and programs created by the majority’s government takeover of health care.  (Provision found on page 1077 of the legislation.)

On a related note, page 33 of the Labor-HHS earmark list released by the Appropriations Committee includes a $300,000 earmark for the Center for Asbestos Related Disease, based in Libby, Montana.  You will recall that health coverage for miners in Libby, Montana was one of the earmarks included in the “cash for cloture” agreement on health care last December – but that didn’t stop appropriators from including yet another earmark for Libby, Montana in the omnibus measure.

At a time when the federal government is running trillion-dollar deficits, many may view an omnibus approach to legislation as precisely the wrong way to control skyrocketing federal spending.  Moreover, many may also view the over $1 billion in new funding for the unpopular health care overhaul as a further example of misplaced priorities.

Legislative Bulletin: H.R. 847, James Zadroga 9/11 Health and Compensation Act

As you are probably aware, once impeachment proceedings conclude tomorrow the Senate will vote to invoke cloture on the motion to proceed to:

  • Firefighters/collective bargaining, S.3991
  • $250 social security checks, S.395
  • DREAM Act, S.3992
  • 9-11 Health bill, H.R. 847

If cloture is invoked on the motion to proceed on any of the bills, the vote series will stop, and the Senate will consume the 30 hour post-cloture time on the motion to proceed to that bill.  In other words, we will only vote on the motion to proceed to H.R. 847, the 9/11 bill, today if cloture is NOT invoked on the first three measures.

A summary of H.R. 847 follows below.  Note that while we have heard rumors about the pay-for being changed, we have received no official word on same; regardless of what amendments may be offered if we actually move to the bill, we are voting on the House-passed bill, and a summary of that legislation’s revenue pay-for is included below.

And to clarify one point, the CBO score of H.R. 847 indicates that the measure will spend $7.4 billion in its first ten years, not $10.5 billion.  The text of the legislation also appropriates up to $4.2 billion in the bill’s second decade, meaning up to a total of $11.6 billion could be spent over the entire 20-year period.

 

H.R. 847 would amend the Public Health Service Act to establish new federal programs for 9/11 workers related to health monitoring and treatments, and expand eligibility for the 9/11 victim compensation fund.  Specific details of the legislation include the following:

World Trade Center Health Program:  The bill would establish within the Department of Health and Human Services a new program to provide medical monitoring, screening, and treatment to workers (including federal employees) who responded to the 9/11 attacks on the World Trade Center (WTC), and residents of New York City “who were directly impacted and adversely affected by such attacks.”  The program is intended to provide:

  • Medical monitoring for those exposed to airborne toxins or other hazards;
  • Screening for community members;
  • Treatment for “all medically necessary health and mental health care expenses (including necessary prescription drugs)” for both responders and community members;
  • Outreach to potentially eligible individuals to inform them of benefits available;
  • Uniform data collection and monitoring; and
  • Research on health conditions arising from the World Trade Center attacks.

Specific details of the program include:

Payments:  H.R. 847 provides that all health benefits provided under the program will be provided “without any deductibles, co-payments, or other cost-sharing” by the individual.  (Reimbursement to the program by the City of New York is addressed below.)  The bill provides for the creation of quality control and anti-fraud elements within the new program, and incorporates existing anti-fraud penalties to the WTC program.

Advisory and Steering Committees:  The bill creates a scientific and technical advisory committee to provide expertise on eligibility criteria and WTC-related health conditions, and two steering committees—one for WTC responders, the other for survivors—to co-ordinate the screening and treatment of eligible members.

Outreach:  The bill includes language requiring the Program Administrator to establish a website, create partnerships with local agencies, and take other measures necessary to inform potentially eligible beneficiaries of the existence of the WTC program.

Centers of Excellence:  The bill directs the Administrator to enter into contracts with Centers of Excellence with respect to monitoring, treating, and counseling individuals related to WTC-related health conditions.  Centers of Excellence include those facilities designated by the Administrator that have experience in treating WTC responders and survivors and meet other specified requirements.  The bill would reimburse Centers of Excellence “at a fair and appropriate” negotiated rate for their fixed infrastructure costs; payments for patients’ treatments would be made as outlined below.

Eligibility for Responders Program:  H.R. 847 includes several categories of 9/11-related responders eligible for the new federal health care program, provided they meet eligibility requirements and have a WTC-related health condition.  The bill would expand eligibility for the new program to persons who “performed rescue, recovery, demolition, debris cleanup, or other related services in the New York City disaster area” and meet certain criteria with respect to airborne toxins (persons categorized as meeting “modified criteria”).  H.R. 847 also specifies categories of currently eligible individuals in line to receive treatment covered by the program, including:

  • New York City Fire Department employees, and retirees, who “participated at least one day in the rescue and recovery effort at any of the former World Trade sites (including Ground Zero, Staten Island landfill, and the New York City Chief Medical Examiner’s office)” at any point between September 11, 2001 and July 31, 2002;
  • Surviving immediate family members of New York City firefighters, and retired firefighters, killed on September 11 at the World Trade Center who received mental health treatment related to their loss before September 1, 2008—but such individuals are only subject to reimbursement for mental health treatments;
  • Participants in the WTC cleanup efforts in Lower Manhattan (defined as areas south of Canal Street), the Staten Island landfill, or the barge loading piers who worked:
    • At least 4 hours between September 11 and September 14, 2001;
    • At least 24 hours between September 11 and September 30, 2001; or
    • At least 80 hours between September 11, 2001, and July 31, 2002;
  • New York City and Port Authority police, and retirees, who worked:
    • At least 4 hours between September 11 and September 14, 2001 in Lower Manhattan, the Staten Island landfill, or the barge loading piers;
    • At least 24 hours between September 11 and September 30, 2001 in Lower Manhattan;
    • At least 80 hours between September 11, 2001, and July 31, 2002 in Lower Manhattan; or
    • One day at Ground Zero, the Staten Island landfill, or the barge loading piers (but not Lower Manhattan as a whole) between September 11, 2001, and July 31, 2002;
  • Workers in the New York City Medical Examiner’s office between September 11, 2001 and July 31, 2002;
  • Workers in the Port Authority Trans-Hudson Corporation tunnel who worked at least 24 hours between February 1, 2002, and July 1, 2002; and
  • Vehicle maintenance workers exposed to debris for one day between September 11, 2001 and July 31, 2002.

The bill also extends eligibility to those fire and police workers and other volunteers who participated in cleanup efforts at the Pentagon or in Shanksville, PA in the days following the September 11 attacks.  The bill includes provisions for an application process lasting no more than 60 days, and an appeal in cases where applications are initially denied.

The bill limits the number of beneficiaries to a maximum of 25,000 who at any time qualify for the program, with no more than 2,500 meeting “modified criteria,” but exempts from the numerical cap those beneficiaries already receiving treatment for an identified WTC-related condition at the time of the bill’s enactment.

Expected Eligibility and Participation:  According to a Congressional Budget Office score of an earlier version of H.R. 847 released in June:

CBO estimates that roughly 650,000 individuals from the NYC disaster area—approximately 75,000 responders and 575,000 survivors—would meet the exposure requirements specified in the legislation, along with potentially another 10,000 responders from the Pentagon and Shanksville, Pennsylvania, sites.  Although many of those individuals may have or develop health conditions related to the terrorist attacks, CBO estimates that only a portion would participate in the WTC Health Program and apply for an award under the VCF [Victim Compensation Fund].  Overall, CBO expects that of the total population that meets the exposure requirements, slightly less than 15 percent [about 99,000 individuals] would enroll in the WTC Health Program by 2020 and slightly more than 5 percent [about 33,000 individuals] would receive awards from the VCF.

Conditions Eligible for Treatment:  The bill defines a WTC-related health condition as “an illness or health condition for which exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the September 11, 2001 attacks on the World Trade Center…is substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition,” or a mental health condition for which the attacks are “substantially likely to be a significant factor in aggravating, contributing to, or causing the condition.”  The bill includes a list of aerodigestive (i.e., asthma and other pulmonary conditions), musculoskeletal, and mental health diseases (including post-traumatic stress disorder) that qualify for treatment.

H.R. 847 also includes an application process to add additional illnesses subject to review by the Administrator and the Advisory Committees, and permits physicians at Centers of Excellence to receive federal payments for treatments for WTC-related diseases not yet identified as such under the provisions above, subject to a subsequent determination by the Administrator as to whether or not the condition will be added to the eligible list of diseases.

Standards for Treatment:  The bill limits treatments paid for by the federal government to medically necessary standards, subject to protocols developed by the Administrator.  The bill includes provisions for an appeals process with respect to medical necessity determinations.

Payment Levels:  H.R. 847 provides that payments to physicians and other medical providers would generally be based upon reimbursement levels under the Federal Employees Compensation Act (FECA), which governs federal workers compensation claims.  The bill also includes language establishing a competitive bidding process among vendors to govern pharmaceutical purchases by eligible beneficiaries, and permits the Administrator to designate reimbursement rates for other services not referenced in the bill language.

Eligibility for Survivors:  H.R. 847 creates a separate program for various segments of the community affected by the World Trade Center attacks.  Eligible groups of individuals include:

  • “A person who was present in the New York City disaster area [defined as any area in Manhattan south of Houston Street and any block in Brooklyn within a 1.5 mile radius of the WTC site] in the dust or dust cloud on September 11, 2001;”
  • Individuals who “worked, resided, or attended school, child care, or adult day care in the New York City disaster area” for at least four days between September 11, 2001 and January 10, 2002—or at least 30 days between September 11, 2001 and July 31, 2002;
  • “Any person who worked as a clean-up worker or performed maintenance work in the New York City disaster area” between September 11, 2001 and January 10, 2002 “and had extensive exposure to WTC dust as a result of such work;”
  • Individuals residing or having a place of employment in the New York City disaster area between September 11, 2001 and May 31, 2003, and deemed eligible to receive grants from the Lower Manhattan Development Corporation;
  • Any individuals receiving treatment at the World Trade Center Environmental Health Center as of the date of the bill’s enactment; or
  • Additional individuals who claim a WTC-related health condition, as determined by the Administrator in consultation with the WTC committees.

The bill includes an application and certification process for community beneficiaries similar to that for responder beneficiaries discussed above.  The bill limits the number of beneficiaries to a maximum of 25,000 who at any time qualify for the program, of which no more than 2,500 may be individuals enrolled based on modified eligibility criteria, but exempts from the numerical cap those beneficiaries already receiving treatment for an identified WTC-related condition at the time of the bill’s enactment.

Beneficiaries under the community-based program would generally receive the same benefits and treatments as the WTC responders, except that the community-based program does not include musculoskeletal disorders in the list of identified health conditions (although some or all of these could be added under the process described above).

Treatment for Other Individuals:  H.R. 847 establishes an additional capped fund to finance care for those living in the New York disaster area at the time of the September 11 attacks, but not meeting the criteria listed above, who have been diagnosed with an identified WTC-related health condition.  The bill caps such spending at $20 million in Fiscal Year 2012, rising annually according to medical inflation rates.

Care Outside New York:  The bill would require the Administrator to “establish a nationwide network of health care providers” to treat eligible recipients outside the New York City metropolitan area, subject to certain reporting and quality requirements.

Research:  The bill would require the WTC Administrator to establish an epidemiological research program on health conditions arising from the World Trade Center attacks.  The program would cover diagnosis and treatment of WTC-related health conditions among responders and in sample populations from Lower Manhattan and Brooklyn, “to identify potential for long-term adverse health effects in less exposed populations.”

Payers:  In cases where an individual is eligible for workman’s compensation, or holds other private or public health insurance coverage, the bill provides that the federal government’s WTC program shall serve as a secondary payer for such claims, similar to the Medicare Secondary Payer program, except that the WTC program would serve as the primary payer for those eligible for Medicare.  Beginning in July 2014, the bill requires individuals to maintain health insurance, as required by the Patient Protection and Affordable Care Act’s individual mandate, in order to qualify for participation in the program.

The bill stipulates that “no funds may be disbursed” unless New York City has entered into a contract to pay for 10 percent of the expenditures necessary to carry out the title in Fiscal Years 2012 through 2018, and a specified similar amount for Fiscal Years 2019 and 2020, amounts that cannot be derived from any federal sources.

Funding:  The bill creates a fund to finance the programs established above, and provides a total of $3.35 billion in direct appropriations for Fiscal Years 2011-2019.  The bill provides up to an additional $1.1 billion in direct spending for Fiscal Years 2019 and 2020, provided that prior years’ spending did not reach the $3.35 billion cap, and that the cap is not exceeded through Fiscal Year 2020.  However, in its score of H.R. 847, the Congressional Budget Office said it “expects that the cap will be reached in 2019 and estimates that no additional health program spending would occur in 2020.”

Changes to September 11 Compensation Fund:  In addition to establishing the new programs established above, H.R. 847 would also make several changes to the September 11 victim compensation fund established in 2001 (Title IV of P.L. 107-42), as listed below.

Extension for Applications:  H.R. 847 would reopen applications to the September 11 compensation fund in cases where the Special Master for the compensation fund determines that the individual became aware of physical injuries suffered as a result of the September 11 attacks after applications to the compensation fund were closed.  The bill would generally reopen applications for the reasons stated above (and for individuals subject to the expanded eligibility provisions noted below) for two years after the individual knew, or should have known, of such injuries, provided the individual seeks treatment in a prompt manner and the claim can be verified.  Additional claims applications under this extension would be accepted through December 22, 2031.

Expansion of Eligibility Definitions:  The bill would modify the definition of eligibility for compensation to define the “immediate aftermath” of the September 11 attacks as including time through August 30, 2002.  The bill would also expand eligibility to include workers handling debris from the World Trade Center, including “any area contiguous to a site of [the 9/11] crashes that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm” and “any area related to, or along, routes of debris removal,” including (but not limited to) the Fresh Kills landfill in Staten Island.

Applicability to Pending Lawsuits:  H.R. 847 would require debris workers or other individuals with pending legal claims relating to 9/11-related injuries, and wishing to seek compensation from the victim compensation fund, to withdraw those legal actions within 90 days after updated regulations regarding the fund application extension are promulgated.  The bill would permit individuals whose applications are denied by the Special Master subsequently to reinstitute their legal claims without prejudice within 90 days of the ineligibility determination—a right not granted to fund applications under the original 9/11 victims compensation program.

Limited Liability:  H.R. 847 limits the liability for construction and related contractors regarding workers’ claims to the sum of the funds available in the WTC Captive Insurance Company, an amount not exceeding $350 million from New York City, and the amount of all available insurance held by the Port Authority of New York and New Jersey and the relevant contractors and sub-contractors.

Funding:  The bill caps federal funding for new claims on the 9/11 compensation fund at $8.4 billion—$4.2 billion for the first ten year period following enactment, and $4.2 billion for the second ten year period.  The bill allows the Special Master to “ratably reduce” compensation payments over each ten year period such that all eligible individuals would receive payments during the first ten years, with the remaining balance provided during the second ten year period.

Attorneys Fees:  The bill caps attorneys fees at 10 percent of the award amount, subject to several exceptions.  The bill provides that “with respect to a claim made on behalf of an individual for whom a lawsuit was filed in the Southern District of New York prior to January 1, 2009, in the event that the representative believes in good faith that the limit [on fees]…will not provide adequate compensation for services rendered,” that representative may appeal to the Special Master for a higher fee award.

Additional Background on 9/11 Compensation Fund:  As noted above, Title IV of Public Law 107-42 authorized payments by the federal government to individuals injured or killed as a result of the September 11 attacks; eligible individuals (victims injured and families of individuals killed in the attacks) received $7 billion in payments before the fund closed in 2004.  Justice Department statistics note that during its operation, the fund issued award letters to 5,562 families whose relatives were killed in the September 11 attacks, and to 2,682 claimants suffering personal injuries as a result of the attacks.

While the process created under the law, and administered by Special Master Kenneth Feinberg, was praised by many victims’ families, Members of Congress, and outside experts as fair and judicious, proponents of H.R. 847 assert that first responders who worked at the World Trade Center site have incurred respiratory and other injuries as a result of the toxins inhaled at Ground Zero—but that these conditions only became manifest after the application period provided for in P.L. 107-42 expired.  Title II of H.R. 847 would therefore seek to reopen the compensation fund to allow these workers, and other individuals, to make claims for compensation.

However, asked by House Judiciary Committee Republican staff in 2008 to comment on a proposed draft of Title II in an earlier version of the legislation considered during the 110th Congress, former Special Master Feinberg responded with an e-mail noting several concerns with the approach taken by the bill sponsors and the majority.  These concerns included:

  • An extension of the eligibility definition of “immediate aftermath” from the first four days following September 11 (as prescribed in regulations creating the compensation fund) to August 30, 2002— which could result in “a huge influx of additional claims” and could cause some individuals to re-apply for compensation;
  • Language that “vastly extends [the fund’s] geographic scope,” potentially leading to “thousands and thousands of additional claimants” and causing additional individuals to re-apply for compensation;
  • An extension of the filing period until 2031—“no latent claims need such an extended date;”
  • Provisions requiring the Special Master to determine when an individual first knew or should have known about their injuries—“how can the Special Master possibly make that determination?” and
  • Language permitting individuals denied eligibility for compensation to return to the tort system and re-file their claims—a right which was specifically denied as a pre-condition for initial applicants of the 9/11 fund, but which some who were denied compensation by the Special Master may now attempt to exercise.

House Judiciary Committee Republican staff note that, to the extent the 9/11 compensation fund is re-opened, Mr. Feinberg recommends that it be done solely to allow first responders with diseases not manifest at the time of the initial application period to receive compensation—language narrower in scope than the provisions discussed above.

Treaty Withholding:  H.R. 847 is paid for by raising revenue on companies located in the United States that are employing American workers.  Under current law, certain payments (principally dividends, interest, and royalties) made by U.S.-based entities to a parent company based overseas are subject to a 30 percent withholding tax, unless the payment is made to a country with which the U.S. has a tax treaty.  In some circumstances, companies with parents located in countries without a tax treaty are able to effectively bypass the withholding tax by routing payments through a subsidiary in a tax treaty country, which then transfers the funds to the parent in the non-treaty country.  The provision would attempt to limit this practice by retaining a withholding tax to a foreign-based affiliate unless the tax would be reduced under a treaty if the payment had been made directly to the company’s parent corporation.

Food Safety Wrap-Up

Just to recap this morning’s votes on the food safety bill (S. 510):

  • The Coburn motion to suspend regarding amendment #4697 on earmarks failed on a 39-56 vote (a 2/3rds vote was needed for passage);
  • The Coburn motion to suspend regarding substitute amendment #4696 failed on a 36-62 vote (a 2/3rds vote was needed for passage);
  • The bill passed on a 73-25 vote.

The measure now proceeds to the House for further disposition.

Food Safety Votes Update

Just to recap where we are after this evening’s votes:

  • Cloture was invoked on the Harkin substitute #4715 to the food safety bill (S. 510) on a 69-26 vote;
  • The Johanns motion to suspend in respect of amendment #4702, regarding the 1099 paperwork mandate, failed on a 61-35 vote (a 2/3rds vote was needed for passage); and
  • The Baucus motion to suspend in respect of amendment #4713, regarding the 1099 paperwork mandate, failed on a 44-53 vote (a 2/3rds vote was needed for passage).

As a reminder, debate on amendments to the food safety bill will continue this evening.  Tomorrow morning, beginning at 9:00 AM, the Senate will move to consider two additional motions to suspend the rules regarding amendments:

Following votes on the two motions tomorrow morning, the Senate will move to vote on passage of the food safety bill, meaning the Senate will have a total of three stacked votes beginning just after 9:00 AM tomorrow.  As a reminder, the motions to suspend will be subject to a 2/3rds majority to allow for consideration of the amendment.  If any motion to suspend is agreed to, the underlying amendment will be subject to a majority for adoption.