Transformation Bill Passes Senate in Party Line Vote

Sen. Betsy Johnson, a critical swing vote, did not vote with Republicans because of concerns the Department of Justice has about a medical liability amendment
The Lund Report

February 14, 2012—After lengthy, impassioned discussion and procedural votes from Senate Republicans in a last ditch attempt to amend Senate Bill 1580 and send it back to committee, the Senate passed the bill allowing for the complete overhaul of the Oregon Health Plan’s delivery system on a party line 16-14 vote this morning.

Senate Bill 1580 allows the Oregon Health Plan to move forward with implementing the creation of coordinated care organizations (CCOs) throughout the state. CCOs will coordinate and integrate physical, mental and dental healthcare, and hopefully save money by focusing on preventive care and reducing emergency room utilization.

The bill’s fate became unclear late last week when Senate Republicans, plus Sen. Betsy Johnson (D-Scappoose) sent a letter to Governor John Kitzhaber and legislative leadership stating they would not vote for the bill if it didn’t include language about medical liability reform. That would have been enough to kill the bill.

Last week, Sen. Jeff Kruse (R-Roseburg) wrote an amendment to Senate Bill 1580 that would provide coverage for any medical provider participating in a CCO under the Oregon Tort Claims Act, which limits liability damages against public institutions such as Oregon Health & Science University. That would have capped damages at  $566,700.

The provision would not have taken effect until October 1, 2013, which Kruse told The Lund Report yesterday was a “forcing function” to make sure that the Legislature would pass medical liability reform in 2013. “Oftentimes, it takes something like that for us to get real and solve problems,” Kruse said.

But the language was not amended into Senate Bill 1580. The bill does call for the creation of a Governor-appointed group, called the Patient Safety and Defensive Medicine Work Group, which would develop legislation for the 2013 session on medical liability reform.

“We have a workgroup that is committed to [a bill for the 2013 session]. Given the complication of the issue, that is the right approach,” said Rep. Tina Kotek (D-Portland), adding that “Oregon Health Plan patients' access to justice overrides the speed with which [Senate Republicans] want to solve the issue.”

“I realize that many of you are unhappy that medical malpractice is not in this legislation,” Sen. Alan Bates (D-Medford) said during his floor speech.

But he said legislators and the Governor are serious are pursuing medical malpractice reform in 2013. “We’re talking about legislation. We’re not clicking the can further down the road.”

He warned that if Senate Bill 1580 did not pass, it would add $239 million to the state’s budget hole, which is currently around $200 million. “This would destroy the Oregon Health Plan,” Bates said. “These kinds of cuts would force physicians to leave the plan, and threaten the financial viability of our hospitals. We can’t afford to turn our back on these shared savings, or a new healthcare system.”

Republicans made a last ditch effort to get more medical liability language in the bill. During today’s Senate vote, Sen. Ted Ferrioli (R-John Day), the Senate Republican’s caucus leader, made an attempt to use a procedural rule that would have allowed the Senate to amend the bill on the Senate floor to include the medical malpractice language. That vote was along party lines, and Democrats prevented the bill from being amended by a 16-14 vote.

Then Republicans tried to send the bill back to the budget-writing Ways and Means Committee. Sen. David Nelson (R-Pendleton) argued that members of the committee had not had time to fully consider amendments to the bill written in the days prior to the meeting. “We need more time to look at this,” Nelson said.

Sen. Chuck Thomsen (R-Hood River) urged his colleagues to send the bill back to Ways and Means so that medical malpractice language could be included in the bill and “work the bill in a bipartisan manner.”

“This is premature and inappropriate to pass at this time,” Bates said in reply. “We need to move this bill. We do not have time to bring this back to committee. It is in good shape at this point. It does what we need it to do.”

That motion also failed along party lines, with a 16-14 vote.

Sen. Johnson proved to be the crucial swing vote that prevented Senate Bill 1580 from dying. “I have been a strong advocate for healthcare transformation in Oregon,” Johnson said. “I am equally committed to meaningful medical malpractice reform. We will not succeed at creating an effective healthcare system, attracting and retaining doctors, and lowering costs if we don’t take on this issue.”

But she went onto say that she had concerns about a recent review performed by the Department of Justice concerning Kruse’s amendment, which raised legal and constitutional questions. “We need the time during the interim to evaluate a medical malpractice proposal that satisfies legal requirements, minimizes Constitutional concerns, and does not jeopardize current institutions.”

After it was clear that Senate Bill 1580 had passed the Senate, Sen. Jackie Winters (R-Salem) and Sen. Bruce Starr (R-Hillsboro) changed their "no" votes to "yes" votes, bringing the final vote count to 18-12.

The bill now moves to the House for a floor vote as early as this week. The bill may face an even tougher road than in the Senate because the chamber is equally divided 30-30 between Democrats and Republicans. Rep. Tim Freeman (R-Roseburg) has said that he will vote for Senate Bill 1580 because it is “sound policy,” but he has also been vocal about the necessity of medical liability reform. And yesterday, Rep. Mike Schaufler (D-Happy Valley) broke ranks with his party to vote against passing House Bill 4164, which gives legislative approval of a state health insurance exchange, after insisting that legislation be passed first to create jobs.

“There is an enormous support for this bill in our caucus,” said Rep. Val Hoyle (D-Eugene). “I can’t predict what’s going to happen. My hope is that we’ll be able to vote up or down on the value of the legislation. With all the work that everybody has put into this, we should be allowed to do that.”

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It wasn't strictly party-line; after the 16-14 vote, both Senators Starr and Winters filed vote changes, making the final tally 18-12.