Tort Reform Or Else

Republicans say they need tort reform if the Governor wants transformation
The Lund Report
April 21, 2011 -- Republicans on a joint committee charged with transforming the Oregon Health Plan made their first bold move Wednesday night saying without medical malpractice reform they can’t support one of Governor John Kitzhaber’s signature proposals this legislative session.
A first draft of a bill emerged this week in the Joint Committee on Health Care Transformation that's attempting to incorporate eight weeks of recommendations from a broad group of bi-partisan legislators and industry stakeholders. The aim is to deliver better, more efficient care with less money for the Oregon Health Plan and other essential human services.
The biggest hiccup so far is tort reform. Republicans say without some protection healthcare providers, strained under diminished resources, would be exposed to increased liability.
But legal experts say any malpractice reform would have to apply broadly and not just for doctors who take care of Oregon Health Plan patients. So reaching consensus on tort reform might actually happen this session even though the issue has languished in political gridlock for decades.
The Oregon Medical Association and the Oregon Trial Lawyers Association were said to be working on a compromise, but according to Joanne Bryson, executive director of the OMA, this isn't correct.
Lorey Freeman, with legislative counsel who drafted the transformation bill, said she couldn't find a way to make tort reform relevant to the bill. “It would make the bill subject to a legal challenge,” she said.
But Republicans scoffed at another section that's in the legislation, which dictates collective bargaining for healthcare workers. If collective bargaining can be related to health, then why not tort reform?
“I think that’s going to be a huge problem if we’re going to talk about cost containment,” said Rep. Jim Thompson (R-Dallas).
One-by-one, Republicans on the committee including Sen. Frank Morse (R-Albany) and Sen. Jeff Kruse (R-Roseburg) voiced similar protests. Rep. Tim Freeman (R-Roseburg) put it in the starkest terms, saying without malpractice reform he definitely will not vote ''yes'' on the bill. The bill needs at least one Republican vote in committee to pass.
Sen. Alan Bates (D-Ashland) agreed with his Republican colleagues saying there must be a way to make malpractice reform apply to healthcare transformation. If not, a possible companion bill might be considered.
Rep. Tina Kotek (D-North Portland) called on Republicans to produce a draft amendment. “Is there a proposal?” Kotek asked. “We had one conversation at a Wednesday meeting. We need to start seeing what you’re actually talking about.”
Kotek had recently learned that House Republicans blocked seven healthcare bills -- four of them hers -- earlier in the day because of a dispute over school districts opting out of an insurance pool.

More with Less

By consolidating healthcare management, the state hopes to coordinate care and create more efficiency across mental health, physical health and chemical dependency providers.

The intent is to create Coordinated Care Organizations, which will include some of the existing Medicaid managed care plans and, potentially, commercial insurers such as Regence BlueCross BlueShield, the state's largest health plan, which currently doesn't participate in Medicaid, but has some interest in looking at the idea, said Tom Holt, director of legislative and regulatory affairs.

"There may be some opportunity for creativity if it's done right that might cause us to take a second look at whether we can do well for people," Holt said. "We’re looking at it. We’re thinking long term. There’s a possibility. While they are initially talking about Medicaid, Medicare eligible, clearly it offers potential building blocks for more commercial business."

The challenges abound. In the first year of dealing with these changes, Coordinated Care Organizations will have less money to pay for medical services. Lawmakers are looking at possible 19 percent reimbursement cuts or roughly $800 million short of what they need to provide ongoing services.
Initial discussions to incorporate long-term care services have been dropped, but the plan still calls for federal waivers to bundle payments for dual eligibles, those people who qualify for Medicaid and Medicare. Eventually the state wants more flexibility with Medicare dollars overall.
So far, Rick Bennett, a lobbyist with AARP Oregon, said his group is pleased with how the bill treats seniors. “We would be concerned about any waiver sought by Oregon that would seek to modify current rights and benefits for Medicare beneficiaries,” he told The Lund Report. “In the legislative concept document in a number of places it clearly states it will not seek to do that.
“We understand the rational for bundling the funds associated with Medicare and Medicaid in paying for those mental health services,” Bennett continued. “The bundling is one thing, but Medicare is a national program. We're very willing to discuss the Medicare program at the federal level. We’re not willing to go down the road where you have one state after another seeking to change or modify those rights and benefits.”
Other discussions on Wednesday night focused on how county mental health services would be incorporated into the overall budgets of these new organizations. Sen. Laurie Monnes Anderson (D-Gresham) pointed out that much of the money flowing from Medicaid into county coffers actually goes to pay for additional services or for people ineligible for Medicaid.
“Medicaid dollars for women’s reproductive health are stretched among lots of recipients that aren’t eligible for Medicaid,” she said. “We have to be careful with the relationship between the safety net and Medicaid.”
Lawmakers are up against a tight deadline and only have until the end of May to finalize a bill with lots of moving parts and big consequences for the network of providers who care for some of the sickest and poorest in Oregon. 

For more information

For the committee web page with materials and agendas click here.
For the legislative draft LC 4105 click here.


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We don't need Tort reform nearly as much as we need "Lawsuit Proof" criteria for "not" ordering tests. Lawsuits cost only a fraction of the cost of practicing defensive medicine. As a physician, there are lots of expensive tests I would not have to order, if I was allowed to follow evidence based criteria for the evaluation of a patient, and then was held harmless for the rare "bad outcome." Few headaches, presenting to the office or ER, are actually caused by a very serious condition requiring immediate diagnosis and intervention. But, as one of my ER colleagues once said: "Any headache could be serious, so I do the scan." With all of the savings from not doing a test on every headache, we can put that money into a big fund, and let the Lawyers figure out how to compensate the rare and unfortunate cases where a bad-outcome does occur, even though the clinical pathway was followed appropriately. Lawyers are the experts when it comes to putting a price tag on death or disability. Physicians are not capable of doing this. That is a big part of the reason why we are going bankrupt from runaway health care entitlements. This is a system problem, that requires a system fix. That takes doctors and lawyers sitting down together and reaching a compromise.