#263: Transparency Matters

Published March 15, 2011

One of the easiest things for a presidential challenger to promise as he or she is running for office is “transparency.” Incumbent administrations inevitably have had certain incidents and conversations they wanted to keep out of the news, and challengers generally have no vast history of hiding information behind such barriers of privilege and protocol.

Everybody likes the sound of transparency until they actually have to abide by it. It’s easy to promise openness until you’re faced with disclosing embarrassing and potentially legally actionable information–where all politicians, in my experience, are willing to do everything and anything to keep that information from leaking out. Clamping down on such transparency isn’t a partisan issue–it’s a politician issue.

President Barack Obama is no exception to this rule. While running for the White House, Obama promised an unprecedented degree of openness on the part of his administration–among other things, promising that the debates about health care policy would occur on C-SPAN, where everyone could see them. When the White House later reneged on this deal, it prompted cringing from the press corps and anger from political independents.

At the time, there was little recourse to gain access to behind-the-scenes negotiations except for Freedom of Information Act requests. It’s notoriously easy to slow-roll these requests–currently, Health Care News has more than half a dozen requests for very specific material that have received no action of any kind for six months (more than a dozen calls to the Centers for Medicare & Medicaid offices have not been returned). One thing many DC insiders cited as a key result of the Republican takeover of the House of Representatives is the oversight power of committee staff–the ability to make requests that, presumably, the administration will have to heed.

Not so fast, says White House attorney Robert Bauer. In response to a letter from the House Energy and Commerce Committee last week, the White House unveiled its position on turning over documents and records related to the backroom negotiations during the Obamacare fight: No dice. The AP reports:

President Barack Obama once promised that negotiations over his health care overhaul would be carried out openly, in front of TV cameras and microphones. Tell that to the White House now.

Republican congressional investigators got the brush-off this past week after pressing for details of meetings between White House officials and interest groups, including drug companies and hospitals that provided critical backing for Obama’s health insurance expansion.

Complying with the records request from the House Energy and Commerce Committee “would constitute a vast and expensive undertaking” and could “implicate longstanding executive branch confidentiality interests,” White House lawyer Robert Bauer wrote the committee. Translation: Nice try.

Committee chairman Fred Upton (R-MI) shared his disappointment in a response–and I’d expect this back and forth to escalate to the subpoena level in short order. But the truth is, it’s unlikely we’ll ever know what was promised in these backroom meetings, which may well be as embarrassing for non-White House participants as for the administration. It’d be interesting to see if these records contained the reasons why key opponents to the law seemed to go silent, and why others stood on the sidelines instead of engaging in the debate.

Isn’t it funny how “stakeholders” who gathered in rooms to hash out the future of the nation’s health policy don’t want the actual stakeholders–American taxpayers–to find out what’s being said, even when the policy fight is over?

— Benjamin Domenech



At Health Affairs, Washington and Lee professor Timothy Jost is once again repeating the White House’s marching orders on an area of health policy. This time, he’s repeating the laudatory comments Obama gave regarding flexibility for states in his endorsement of the concept behind the Wyden-Brown proposal.

Following on the 80 pages of regulations released on Friday by HHS regarding the so-called “Innovation Waivers,” Jost writes, “One of the most striking characteristics of the Affordable Care Act is the flexibility that it offers the states to partner with the federal government in implementing reform.” He then proceeds to detail what this flexibility looks like:

Substantively, the proposed regulations by and large repeat the provisions of section 1332. For a state to receive an innovation waiver it must demonstrate that the state’s proposal will provide coverage that:

  • is at least as comprehensive as ACA coverage;
  • is at least as affordable as coverage under the ACA and offers at least as great protection against excessive out-of-pocket spending;
  • covers at least as many residents as would be covered under the ACA; and
  • will not increase the federal deficit.

The primary contribution of the proposed rule is to describe the procedures that the states and HHS and Treasury must follow in applying for and approving waivers. A state will begin by enacting legislation establishing its reform plan. It will then apply for a waiver, submitting a comprehensive description of its program and the provisions of the ACA which it is asking to be waived, along with an actuarial certification and economic analysis demonstrating that its proposed waiver will meet the substantive requirements of section 1332. The proposal must include a detailed 10-year budget plan, data supporting the request, and an explanation of the key assumptions and methodologies on which the request is based. The preface to the rule suggests that it would probably be necessary for a waiver request to be submitted a year before proposed implementation.

Once a proposal is submitted, HHS and Treasury will have 45 days to make a preliminary determination that the application is complete. Once they determine that they have enough information, they will have 180 days to complete the approval process. Review of a waiver request will be coordinated with applications for waivers under other federal laws, such as Medicaid or CHIP waivers.

A waiver can be approved for up to 5 years. States must submit annual reports and HHS and Treasury must monitor implementation. HHS and Treasury can suspend or terminate a waiver if the state fails materially to comply with the terms of the waiver.

As anyone with a brain can tell you, this is a far cry from “flexibility”–particularly that last portion, which really locks this down as a program which will serve at the pleasure of Secretary Sebelius. As I’ve written in the past, the essence of Wyden-Brown and these innovation waivers is to allow only for movement in one direction: away from consumer driven care, and toward single-payer coverage. Politico’s Ben Smith reported that administration insiders conceded as much in the wake of a White House conference call, and thankfully, Senate Republicans don’t seem to be taking the bait thus far.

SOURCE: Health Affairs Blog


Following on the prior item, economist Eric Fruits passes along this insightful, straightforward testimony he gave in response to HB 3510, Oregon’s proposed single-payer approach to a state-based reform solution. He drills down to the real problem in this portion–that the state is trusting an unelected board to be able to manage everything better than the marketplace could.

Section 3 of this legislation forbids almost all types of private health insurance in the state. The legislation also clearly mandates: “A health care provider must accept payment from the plan as payment in full and may not bill a patient for an amount exceeding the payment made by the plan.”

In this way the legislation makes the state the sole provider of health insurance in the state. Because there is no way to “bend the cost curve” on the consumer side, the only way the state can control costs is by squeezing providers.

I have no faith that an unelected–yet incredibly powerful–Board will be able to walk the tightrope of paying providers enough to stay in the state without handing out a windfall to those select few with extraordinary access to the political system.

Fruits previously analyzed Oregon’s attempts at reform in a white paper for the Cascade Policy Institute last year.

SOURCE: Scribd


A study in the British Medical Journal details a large survey of doctors in the United Kingdom and the United States regarding practicing guidelines and error reduction:

UK doctors were more likely to have developed practice guidelines (82.8% UK vs 49.6% US, p<0.001) and to have taken part in a formal medical error reduction programme (70.9% UK vs 55.7% US, p<0.001). US doctors were more likely to agree about the need for periodic recertification (completely agree 23.4% UK vs 53.9% US, p<0.001). Nearly a fifth of doctors had direct experience of an impaired or incompetent colleague in the previous 3 years. Where the doctor had not reported the colleague to relevant authorities, reasons included thinking that someone else was taking care of the problem, believing that nothing would happen as a result, or fear of retribution. UK doctors were more likely than US doctors to agree that significant medical errors should always be disclosed to patients. More US doctors reported that they had not disclosed an error to a patient because they were afraid of being sued.

On that last point, here’s the survey data:

UK doctors were less likely that those in the US to agree that all the benefits and risks of a procedure should be explained to the patient (‘completely agree’ UK 73.8% vs 88.4% US p<0.001). However, when things went wrong, UK doctors were significantly more likely than their US counterparts to agree that significant medical errors should always be disclosed to affected patients (completely agree 70.2% UK vs 63.5% US, p<0.04). More US doctors reported that they had not disclosed an error to a patient at some time in the previous year because they were afraid of being sued (12.7% UK vs 21.4% US, p<0.002).

Fear of lawsuits is understandable, but numbers this high indicate the need for significant reform of our medical malpractice system. A system that encourages doctors to hide errors from patients is not healthy for anyone involved.

SOURCE: BMJ Journals


I encourage you all to read Part I, Part II, and Part III of Avik Roy’s important series on how Medicaid harms the poor. Written in response to several liberal critics of his initial argument, Roy provides rigorous detail on why Medicaid delivers poor outcomes and makes the case for significant reform of the system. While much of the series is an argument regarding research data, he closes with this anecdote, which I found quite moving:

Finally, it’s important that we cut through the statistical arcana and remember what’s really at stake here: the lives and longevity of people like Carol Vliet and Brian Curtis.

After Carol Vliet’s cancer recurred, this time with malignancies, her primary physician of two years told her that he couldn’t see her any more, because he could no longer afford Medicaid’s penurious reimbursement rates.

Carol was one of the lucky ones–at least she was able to find a primary care physician to begin with. Brian Curtis, a two-year-old boy, had a tougher time. “I called four or five doctors and asked if they accepted our Medicaid plan,” his mother, Rebecca, told the New York Times. “It would always be, ‘No, I’m sorry.’ It kind of makes us feel like second-class citizens.”

The cold, hard, truth is that, thanks to the indifference of intellectuals and the stubbornness of partisans, Brian and his parents are second-class citizens. The Brian Curtises of this world, who will grow up without access to primary care, won’t even find out they have cancer until it’s too late.

We have it in our power to change this, to give children like Brian a future–but only if we are willing to see what is in front of our noses, and liberate the states to give high-quality care to the truly needy. I hope we do.

So should we all.

SOURCE: Forbes; Forbes; Forbes