Getting Policies Implemented is tough

People often ask why addressing change in Public Policy, as it relates to Health Care, often appears to progress at a pace that would make a tortoise seem to move at lightning speed.  The answers are manifold and complex.  The Founding Fathers, in framing the branches of government, purposely wanted to make changes a slow and deliberate process.  More recently, legislators who often seem more concerned about maintaining political or power gains have allowed gridlock to become the norm.  In addition, are also multiple stakeholders, including lobbyists, that have become involved in trying to modify potential legislation to suit their individual and often competing interests. These involvements take time

The system was designed to be slow/ponderous

First consider that the founders made the system cumbersome so as to slow radical changes in policy, focused on individual issues that might be reversed soon after implementation.  Multiple conflicting changes in a law or policy were perceived to be confusing and impede orderly progress.

 

Most bills are intended to originate in the House of Representatives. After a bill[1] is proposed it is usually scrutinized by one or more house committees[2].  The committee review was intended to examine the proposal to ensure that it was written in an understandable form and that it was consistent with congressional intent and within legal boundaries.  After committee review, the bill is sent to the full house for a vote[3]. Once the house “approves” the proposed law, the bill should be referred to the Senate, where, again, it is often referred to a Senate Committee[4] for review, debate and further refinement.  Those bills that have made it through committee hearings, then are referred to the whole Senate for a vote.  If the Senate approves the bill, and it has not been markedly revised from the House version, the bill is sent to the President who can do one of three things: 1) agree with the bill and sign it into law; 2) disagree with the bill and veto it, or 3) keep it in his office, to allow the legislative branch some time to reflect.  If the Senatorial version of the bill is significantly different from the House, the bill usually gets referred to a Joint House Senate committee to arrive at a consensus. Then the revised bill can be revoted upon and then sent for Presidential approval.

 

Even after this process, there is one more hurdle before a law is implemented.  A Secretariat of the Executive Branch must interpret the law, as passed, and create mechanisms for implementing the it – called “rule making”.  The rules are published and usually have at least three months for public review and comment before implementation.  Even if all the processes function smoothly, it can conceivably take a bill over a year from inception to implementation.  Occasionally, after bills have jumped through all the hoops to become a law, other parties go to the court system to sue to get parts of a law overturned. Sometimes these lawsuits go as far as the US Supreme court for clarification[5]. Again, all of this takes time.

 

Getting laws passed has become more ponderous, especially since the 104th Congress. (See Table I)

Since 1973, there have been over 180,000 bills proposed or roughly 7,600 bills per Congress[6]. Of those, just under 19,000 have passed and became law[7].  Up through the 102nd Congress (1991-1992) there were over 1,200 laws passed per congress, with passage rate of approximately 11% from introduction to becoming law. Since the 104th Congress there have been fewer laws passed, with between 4% and 10% of proposed bills becoming law. These observations suggest that the legislative process has become significantly less efficient than even the founding fathers intended.  There are fewer bills coming to the floors and many of them are considerably more complex, often with multiple amendments[8]. Congress may also be simply bringing fewer issues to a vote for lawmaking.  Prior to the 111th Congress, well over 6.5% of all bills brought to the floor became laws. From the 111th Congress on which included “The Patient Protection and Affordable Care Act” (Public Law 111-148) fewer than 6% of all bills that had been proposed were passed into law.  According to some of the leaders within congress, any legislation proposed by the current president, or his political allies, would be prevented from even being brought to committee or to a vote. to a vote.  This ideological obstructionism appears to be based on a desire to maintain political power, not to steer the course of the country through thoughtful legislation.

Many parties often have competing stakes in various policy issues

There are other factors that may result in such a log jam in Congress to create the appearance of inaction.  Clearly, the political polarization in the country is one such force.  The reluctance of one party to work with the other is a related influence. There are also many stakeholders with an interest in what legislation moves forward, including those that would effect change in HealthCare policies:

Policy Stakeholders with special interests in health policy issues include:

    1. International
      1. United Nations (founded 1945)
        1. World Health Organization (founded in 4/7/1948 – World Health Day)
      2. OECD[9]  (founded 1961)
    2. National (depends on the country). In the US:
      1. CDC (Founded in 1946 as Communicable Disease Centers; name changed to stand for Centers for Disease Control and Prevention in 1992)
      2. National Institutes of Health (and appropriate sub institutes)
      3. CMS (Centers for Medicare & Medicaid Services)
      4. National Academies – were separate until 2015?)
        1. These are separate nonprofit (Non-Governmental Organization) units.
        2. Institute of Medicine, National Academy of Medicine (Now Academy of Science Engineering and Medicine).
          1. National Academy of Sciences established in 1863 (nasonline.org)
          2. National Academy of Engineering established in 1964 (nae.edu)
          3. National Academy of Medicine established in 1970 (nam.edu)
    3. State  (IL)
      1. Illinois Department of Public Health (in Illinois – each state has its own DPH)
    4. County
      1. Department of Public Health
    5. City
      1. Chicago Board of Health
    6. Private Philanthropic organizations
      1. American Medical Association
      2. Disease Centered
        1. Professional Organizations
          1. American College of Physicians
          2. American College of Cardiology
          3. American Nursing Association
        2. Voluntary Health organizations/Advocacy Groups
          1. Heart Associations
          2. Cancer Associations
      3. Individual Philanthropies (Gates, Buffett, and other Billionaires)
        1. Include activist shareholders (in PhRMA, Device manufacturers, investor-owned provider organizations)
        2. Champions of “Orphan Diseases” (such as Castleman’s Disease and Cystic Fibrosis)
    7. Public policies can influence decisions in individual clinical encounters (physician/patient): – these stakeholders may often resist the application of points of view expressed in a law or public policy, because they will perceive their situation to be unique.   This resistance may be appropriate but is really justified when the competing concept is be able to be justified by thoughtful use of various empiric data sources[10].

 

Other Influencers of Public Policy

Much of proposed legislation today is influenced by “Lobbyists”[11].  These are specialists who generally have expertise in the mechanisms of law making and in the issues that may come before lawmakers.  Frequently, lobbyists may have been members of congress or may have been employed by one or more of the committees of legislative or executive branches of government. In the 2020’s there are approximately 11,500 lobbyists registered with the United States government[12],[13]. (See table 2) One source suggests that in the first quarter of 2021 there were just over 1,800 clients using lobbyists to discuss health issues with lawmakers[14]. Many of the lobbyist develop relationships with legislators or their staff in order to point out the downside of the concept behind a proposed bill, or to make suggestions for additions or amendments to the bill.

Many of the bills proposed today are complex, often covering more than one targeted issue. This can make them harder to understand. They may contain addenda that might not stand if viewed in the light of day. The way that bills are now phrased is also often cumbersome, which may confuse their intent.  In the 1950s through the 70s, a bill usually had a single focus and was phrased in a way that it could be understood.  Today’s bills are often designed to be implemented by adding to or amending specific components of the United States Code[15].  To read a bill, as written, often demands an almost encyclopedic knowledge of the Code. Understanding the complexity of bills relating to Health Care may come from an examination of the size of bills over the past several decades.  In 1971 the Kennedy health care proposal outlined in the Congressional Record (Senate) was 30 pages long[16] The Clinton proposal “The American Health Security Act of 1993” had 200 pages[17].  The PDF of PP-ACA of 2010 had 906 pages. The more recent American Health Care Act of 2017, which was largely aimed at rescinding, repealing or overturning specific components of the ACA had 132 pages

There are many impediments to change in Public Policy. Some were built into our system of government and some are from obstructionism by politicians and political parties. In addition, those who have specific aims in getting legislation passed can slow the process by providing multiple inputs either individually or through lobbyists.  Progress in getting legislation passed is delayed by the complexity of the laws and the length of each bill that is being introduced.

Perhaps we would be well served by reverting from the “Omnibus” type of bill to single issue bills. Amendments could then be required to address only the substance of the bill. Adding other non related issues, known as “pork”, only makes the process more complicated.  Changing the mindset of legislators and special interest groups will be harder.  Lobbyists will tell us that they serve a specific purpose for the greater good. However, one could question the number of people in the Lobbying industry. Improving the legislative process will take study and attempts by well-meaning people to achieve a better system.

 

 

 

Appendex:

Table 1.: What Happens to Legislation?

Year Congress President House Senate House Bills Proposed # of House Bills That Became Law % House Bills Became Law Comment
19**
20**
69-70 91 Nixon Dem Dem 582 Beyond Scope of Coverage[1]
71-73 92 Nixon Dem Dem 435 Beyond Scope
73-74 93 Nixon Dem Dem 17,690 1298 7.3%
75-76 94 Ford Dem Dem 15,836 1176 7.4%
77-78 95 Carter Dem Dem 14,414 1266 8.8%
79-80 96 Carter Dem Dem 8,455 1226 14.5%
81-82 97 Reagan Dem Rep 7,457 946 12.7%
83-84 98 Reagan Dem Rep 6,442 1246 19.3%
85-86 99 Reagan Dem Rep 5,743 1327 23.1%
87-88 100 Reagan Dem Dem 5,585 1426 25.5%
89-90 101 Bush (41) Dem Dem 5977 1300 21.8%
91-92 102 Bush (41) Dem Dem 6212 1180 19.0%
93-94 103 Clinton Dem Dem 5,310 930 17.5%
95-96 104 Clinton Rep Rep 4,344 333 7.7%
97-98 105 Clinton Rep Rep 4,847 394 8.1%
99-00 106 Clinton Rep Rep 5,681 580 10.2%
01-02 107 Bush (43) Rep Dem 5,767 377 6.5% 9/11/01 Attacks
03-04 108 Bush (43) Rep Rep 5,431 498 9.2%
05-06 109 Bush (43) Rep Rep 6,436 482 7.5%
07-08 110 Bush (43) Dem Dem 7,340 460 6.3%
09-10 111 Obama Dem Dem 6,570 383 5.8% 111-148 PP-ACA
11-12 112 Obama Rep Dem 6,729 283 4.2%
13-14 113 Obama Rep Dem 5,893 296 5.0%
15-16 114 Obama Rep Rep 6,536 329 5.0%
17-18 115 Trump Rep Rep 7,401 442 6.0%
19-20 116 Trump Dem Rep 9,067 344 3.8%
21-22 117 Biden Dem Rep
Range 4K-16K  3.8-25.5%
 [1] See section on About Legislation ( https://www.congress.gov/help/legislation ) that discusses this in Scope of Coverage and where records are not readily available until 93rd Congress (1972)

Table 2: Numbers of Registered Lobbyists in US:

Year Registered Lobbyists (OS)[18] Registered Lobbyists (Statista)[19]
2000 12,540 12,540
2005 14,090 14,093
2007* 14,819 14,825 15,137 according to Ctr Responsive Politics as reported in Reuters[20]
2010 12,911 12,912
2015 11,525 11,526
2020 11,544 11,524

 

End Notes

[1] Proposed Legislation can take several forms: from https://www.congress.gov/help/legislation

      1. Bill (originate in house or senate)
      2. Joint Resolution
      3. Concurrent Resolution
      4. Simple Resolution

[2] A review of the house committees in mid 2021 enumerates 29 committees, although there are 20 standing committees. https://www.house.gov/committees

[3] Sometimes the committee can (and often does) keep a proposal in the committee without referring it back to the house.  Then the bill is said to “die in committee”

[4] There are 24 senate committees https://www.senate.gov/committees/  Three of these (and their subcommittees) focus on healthcare related issues. https://www.mgma.com/advocacy/make-change-happen/take-action/key-congressional-committees-in-healthcare

[5] The individual mandate portion of the ACA which was passed in 2010 went to the Supreme Court in 2012

[6] The range of bills passed per congress is between approximately 4,300 and 18,000 bills per Congress

[7] These numbers were derived from the congress.gov website  https://www.congress.gov/help/legislation   https://www.congress.gov/browse/105th-congress  There are queries for each Congress

These numbers may be at least a little misleading because I am using House bills as proxy for all action.  There are also senate bills (always fewer than house).

[8] Often it appears that many amendments to large (“omnibus”) bills  have little if anything to do with the original intent of the proposers of the bill

[9] Organization for Economic Cooperation and Development

[10] In general, concepts are more likely to be representative of reality when there are several independent sources confirming them.

[11] The term Lobbyist is often ascribed to activities in the Willard Hotel in Washington during President Grant’s tenure.  However, other sources point out that the term was used when referring to supplicants17t to the British House of Commons in the 17th century. http://www.welovedc.com/2009/06/09/dc-mythbusting-lobbyist-coined-at-willard-hotel/

[12] There are a total of 541 legislators (100 Senators, 435 representatives and 6 delegates to the House).  This suggests that there are approximately 21 registered lobbyists per legislator.

[13] In 2007 there were 14,800 plus registered lobbyists

[14] https://www.opensecrets.org/federal-lobbying/issues/summary?id=HCR  accessed 7/15/2021

[15] To understand the intent of such an addition/deletion or amendment one has to know what the component of the USC actually says

[16] Kennedy’s introduction of his proposal was 30 pages of small print 4 columns per page https://www.healthcare-now.org/legislation/health-security-act-kennedy-griffiths-corman/  It was in bill format as S3 in 1973, 1975 and 1977

[17] The PDF of the Government Printing Office version has 200 pages (https://www.congress.gov/bill/103rd-congress/house-bill/1200/text accessed  July 15, 2021

[18] https://www.opensecrets.org/federal-lobbying

[19] https://www.statista.com/statistics/257340/number-of-lobbyists-in-the-us/

[20] https://jp.reuters.com/article/obama-lobbying/factbox-how-many-lobbyists-are-there-in-washington-idUSN1348032520090913  accessed 7/16/2021

About Ted

Edward B. J. (Ted) Winslow received an MD from the Faculty of Medicine of the University of British Columbia in Vancouver and an MBA by the Kellogg School of Northwestern University. Before getting his MBA, Ted practiced Cardiology and Internal Medicine at several Chicago institutions (University of Illinois, Veterans West Side, Illinois Masonic, Northwestern Memorial and Evanston Northwestern Healthcare – each one at a time). As a practicing physician, Ted has had experience in managing a medical practice, and implementing the adoption of electronic medical record systems
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