Senator Betsy Johnson joins Republicans in holding CCOs hostage to tort reform

Chris Lowe

The Oregonian reports that Senator Betsy Johnson, D-Scappoose, has joined all fourteen Senate Republicans in signing a letter threatening to scuttle the Coordinated Care Organization (CCO) portion of Oregon health care reform, at least for the 2012 legislative session, unless CCOs are brought under a liability cap that is part of a broader Republican agenda for tort reform.

This is essentially hostage-taking. CCOs are one of Governor Kitzhaber's key priorities. Their innovative features have attracted a great deal of interest from the Obama administration as way to leverage the Accountable Care Organization provisions of the Patient Protection and Affordable Care Act to improve health, creating a potential to bring up to $2.5 billion in federal revenue to Oregon over five years.

The CCO bill, SB 1580 would approve the business plan for CCOs put forward by the Oregon Health Authority, and allow the OHA to go ahead with rule-making regarding criteria for choosing or establishing CCOs within parameters established by the bill.

SB 1580 is currently in the Joint Ways and Means Committee, of which Senator Johnson is co-chair. Fourteen Republicans plus Senator Johnson could also block the bill on the Senate floor.

What the Republicans seek, joined by Senator Johnson, is to bring the CCOs under the provisions of the Oregon Tort Claims Act of 2009, which limits the tort liability of public agencies in Oregon.

This effort is a form of class warfare against low income people, since the CCOs in the first instance will serve people on the Oregon Health Plan. If the Republican + Johnson effort succeeds, CCO patients will have inferior protection to everyone else against medical malpractice including CCO maladministration that might lead to poor care.

Including the CCOs under Oregon Tort Claims Act would only save the state about $20 million per year, according to a recent OHA-commissioned study (downloads a pdf). Pretty clearly the aim here is not related to OHP or CCO costs, but to advance a broader liability limitation agenda, even at the expense of improved health for low income people and health care cost savings.

Since the governor hopes at some point to bring public employees into the CCOs, it might also be an attack on public workers. Alternatively it is likely to raise the level of resistance from public workers to being included in CCOs, or to choosing to join them if the CCOs were opened on a voluntary basis.

According to The Oregonian "Sen. Alan Bates, D-Medford, said he supports limiting medical malpractice awards, but given the potential funding, the letter 'is like playing with nuclear weapons. If they hold, they'll kill this thing, and we'll all pay the consequences.'" Bates is a physician from Medford and one of the Senate Democratic leaders on health care reform matters.

The CCOs are the core of the "Transformation" piece of health care reform, as distinct from the Exchange part required by PPACA. Transformation is dearest to Governor Kitzhaber's heart, because it addresses not just insurance-related financial access elements of reform, but the actual delivery of care, which is Kitzhaber's longstanding main interest. The OHA's proposal aims especially to shift the OHP to "upstream" care that focuses on health promotion, prevention, primary care, and early stage chronic disease management. Such care is widely understood in medical and health policy circles to be the central element of any serious efforts to improve population health and thereby control overall health care costs.

More information on CCOs and recent politics related to them is provided by the Oregon Center for Public Policy here and by The Lund Report here and here.

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    Correct me if I'm wrong, but didn't the amendment that both Senators Betsy Johnson and Joanne Verger supported (along with Republicans) simply apply the same liability caps to medical providers in CCOs that the legislature recently extended to medical providers at OHSU?

    And, if so, what's wrong with that?

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        Chris, I think your convoluted attempt to distinguish between OHSU medical providers and CCO providers omits the principal one: OHSU providers work for a state hospital which has historically benefited from tort limits that private practitioners (including ones that work for nonprofit hospitals) haven't enjoyed.

        I take it from your initial hint that you didn't support caps for OHSU but it still doesn't explain how a legislator who supported those caps does support caps for CCOs.

        To use the popular terminology of the day, Democrats seem to support limits for the OHSU medical providers (the top 1%) but not for the medical providers willing to serve medicaid patients in CCOs (the 99%).

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          Jack, The question is, do the patients of either set of doctors benefit from liability limitations? BJ Cefola below makes the best case that health care generally might benefit from reduced provider exposure to liability insofar as it might lead to fuller reporting of errors that could lead to reduction of such errors over the long term. That in turn presupposes settings where such reporting would occur and errors may result from patterns of practice that are susceptible to systematic change or systemic policies -- like hospitals or perhaps large group practices or clinics. Some CCOs may end up looking like that. Others are going to end up looking much more like insurance company HMOs.

          Personally I would be interested in looking at malpractice reform that might say distinguish between what one might call "honest errors," including judgment calls that happen to work out badly where the error, if that's what it is, only is visible in the outcome, and errors that fall in the general area of inevitable human imperfection, that might be subject to a liability cap, vs. the rarer but truly egregious cases that do arise occasionally. I would also want mechanisms that work better to weed out the relatively rare bad doctors who display patterns of repeated error. And, probably anathema to most Republicans, I would want stronger regulatory power to force managerial changes on health systems that produce patterns of error by bean-counting decisions to understaff and overwork frontline providers. If Republicans would give up their ideological opposition to regulation that limits profits, in a setting where profit considerations do not produce the best allocation of resources for health outcomes, then it would be easier to deal with removing tort suits as the main, imperfect form of patient protection by putting in better forms of protection.

          However, that is not what is at stake here. Republicans are not proposing replacing tort suit protection with something better -- only to weaken the protection offered by the inadequate system.

          And, back to your sleight of hand, they are proposing to weaken it only for the lowest income patients, the bottom 20% or so of the 99%.

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    Betsy Johnson needs to be replaced by a real Democrat who cares about the 99%. This is certainly not the first time she's voted against the interests of common Oregonians, she represents the 1% which she is part of.

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    Ah, the female Joe Lieberman or Ben Nelson of the Ore. Senate. Good way to become the world's worst person by your colleagues.

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      BJ, I don't quite agree with you, but this is certainly reasonable and thoughtful, especially your second paragraph.

      A large reason for disagreeing is the moral hazard of rewarding this kind of outrageous hostage-taking behavior. I think it is necessary to call it out and fight to make it too hot and embarrassing for the fifteen to all stick with this, starting with Senator Johnson and Republican senators from whom we sometimes can expect better, like Frank Morse.

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        Chris, is it really hostage taking when the bill as written is produced in a back room with only 3 participants? Progressives on this page continuously call for logical and meaningful compromise and statesmenship (person?) from others. The CCO's are also state entities and a precedent has been set with the previously mentioned tort caps.

        Why push something through when a meaningful tort cap can, and will help stop expensive defensive medicine? In the words of Julie Andrews, 'A Spoonful of Sugar Helps the Medicine Go Down'

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    Big deal. So Betsy isn't voting in lockstep with her caucus. I thought everyone here always praised folks who break with their ideological masters and show independence from the caucus.

    Oh wait. It's only when Republicans do that. Anyone else who tries it should be replaced. As Buckley once said, "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover there are other views."

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      The difference between what is considered hostage-taking and what is considered strategy depends on which side of the aisle you are on.

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      Jim, I'm still catching up on this issue, but you seem to have nailed it. Republicans always point to malpractice as their ONE AND ONLY "big idea" when it comes to reducing health care costs, yet it is in fact a tiny component of overall healthcare spending. This seems like another chance for them to scream about their one size fits all "solution." Sigh.

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    (full disclaimer: I'm a trial lawyer) Why are we focusing on "tort reform" and "cost reduction"over patient safety?

    And Jack, the reason OHSU doctors are treated differently than other doctors has to deal with the Oregon Torts Claim Act. Traditionally, the government and its actors were immune from suit. The OTCA allows suits against both and sets the parameters. I don't agree with the caps, or the definition of OHSU doctors as governmental employees, but that is the reason for "disparate treatment."

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    Regardless of the merits, it's not clear why it should be tied to the CCO bill. On the merits, it's hard to say that malpractice insurance is not affordable in Oregon - we rank 38/50 states in cost - well below average. Also, there's no guarantee that tort reform will drive down costs. Reforming med mal without a corresponding regulation of doctor's fees is just giving away patient rights without getting anything in return. The Obama administration's approach to this early in health reform made sense - give doctors a "safe harbor" for using evidence based practices in patient care. This encourages docs to keep up on the latest developments and provide a high standard of care, in exchange for some protection when a patient simply has a bad outcome. Caps simply reward bad doctors by limiting their liability for their negligence.

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