Reconciliation: Not New. Not Controversial. And Wouldn't Be Used For Vast Majority of Health Reform

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1 For Immediate Release Contact: Jacki Schechner February 25, 2010 Reconciliation: Not New. Not Controversial. And Wouldn't Be Used For Vast Majority of Health Reform News Outlets Continue To Get It Wrong On Reconciliation. History Proves The Majority Rule Process Is Far From Extraordinary - Even For Health Care Legislation The idea that reconciliation is unprecedented or a subversion of Senate rules is wrong. It s also wrong to say health care reform will be passed through reconciliation. In fact, the vast majority of health care reform has already passed the Senate despite an attempted Republican filibuster that forced repeated cloture votes in December. If President Obama and Democratic leadership in Congress decide to use the budget reconciliation process to complete health care reform, they won't be using it for the entire bill. In fact, they will only be using it for a narrow list of improvements to the bill, in lieu of a formal conference, which the Republicans have promised to obstruct. Reconciliation isn t controversial, and it isn t rare. While Republicans frame the process as an extraordinary measure used to ram through legislation, reconciliation has been used in most years since its first use in times. In fact, in every Congress since the procedure was created, except for the last Congress ( ), the reconciliation process was used to pass significant legislation, and the last nine budget reconciliation bills were initiated and passed by Republican Congresses. Reconciliation is not the same as the so-called nuclear option, the unprecedented 2005 Republican threat to rewrite the Senate procedural rules midstream to pass judicial nominees that didn t have the votes for Senate confirmation. But even if reconciliation were to be used for more than just a narrow list of improvements to the bill, as Wednesday, "health care and reconciliation actually have a lengthy history. 'In fact, the way in which virtually all of health reform, with very, very limited exceptions, has happened over the past 30 years has been the reconciliation process,' says Sara Rosenbaum, who chairs the Department of Health Policy at George Washington University...In fact, over the past three decades, the

2 number of major health financing measures that were NOT passed via budget reconciliation can be counted on one hand. And one of those the 1988 Medicare Catastrophic Coverage Act was repealed the following year after a backlash by seniors who were asked to underwrite the measure themselves. So using the process to try to pass a health overhaul bill might not be easy. But it won't be unprecedented." Full NPR article below: :// Health Care No Stranger To Reconciliation Process by February 24, 2010 To reconcile or not to reconcile when it comes to a health overhaul bill, that seems to be the biggest argument of the moment. At issue is a process called budget reconciliation. By writing Obama's health care plan as a budget bill, Democrats can prevent a Republican filibuster in the Senate and advance the bill with a simple majority instead of the 60-vote supermajority they no longer have. In Depth The Budget Reconciliation Process Jan. 21, 2010 Not surprisingly, that has Republicans crying foul. Budget reconciliation, Sen. John Kyl (R-AZ) told reporters Tuesday, "was never designed for a large, comprehensive piece of legislation such as health care, as you all know. It's a budget exercise, and that's why some refer to it as the 'nuclear option.'" "The use of expedited reconciliation process to push through more dramatic changes to a health care bill of such size, scope and magnitude is

3 unprecedented," Sen. Orrin Hatch (R-UT) wrote in a letter to President Obama on Monday, urging him to renounce the possibility of trying to pass a bill using the procedure. But health care and reconciliation actually have a lengthy history. "In fact, the way in which virtually all of health reform, with very, very limited exceptions, has happened over the past 30 years has been the reconciliation process," says Sara Rosenbaum, who chairs the Department of Health Policy at George Washington University. A History Of Reconciliation For 30 years, major changes to health care laws have passed via the budget reconciliation process. Here are a few examples: 1982 TEFRA: The Tax Equity and Fiscal Responsibility Act first opened Medicare to HMOs 1986 COBRA: The Consolidated Omnibus Budget Reconciliation Act allowed people who were laid off to keep their health coverage, and stopped hospitals from dumping ER patients unable to pay for their care 1987 OBRA '87: Added nursing home protection rules to Medicare and Medicaid, created no-fault vaccine injury compensation program 1989 OBRA '89: Overhauled doctor payment system for Medicare, created new federal agency on research and quality of care 1990 OBRA '90: Added cancer screenings to Medicare, required providers to notify patients about advance directives and living wills, expanded Medicaid to all kids living below poverty level, required drug companies to provide discounts to Medicaid 1993 OBRA '93: created federal vaccine funding for all children 1996 Welfare Reform: Separated Medicaid from welfare

4 1997 BBA: The Balanced Budget Act created the state-federal children's health program called CHIP 2005 DRA: The Deficit Reduction Act reduced Medicaid spending, allowed parents of disabled children to buy into Medicaid For example, the law that lets people keep their employers' health insurance after they leave their jobs is called COBRA, not because it has anything to do with snakes, but because it was included as one fairly minor provision in a huge reconciliation bill, she says. "The correct name is continuation benefits. And the only reason it's called COBRA is because it was contained in the Consolidated Omnibus Budget Reconciliation Act of 1985; and that is how we came up with the name COBRA," she says. COBRA, which confusingly did not become law until 1986, was actually a much larger bill, including many nonhealth provisions and many other important health provisions as well (see chart). Among them was the socalled Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals that accept Medicare or Medicaid payments to at least screen patients who arrive for emergency treatment, regardless of their ability to pay. Children's Health But the budget reconciliation process has been used for more far-reaching health policy changes as well, says Rosenbaum. The expansion of health insurance coverage for low-income children is a prime example. "In 1980, children who were living at less than half the poverty level in the United States could not get a Medicaid card in half the states if they had two parents at home," she says.

5 But via a series of budget reconciliation bills, beginning in 1984, Congress began expanding Medicaid coverage. In 1997, also in a budget reconciliation bill, it created the Children's Health Insurance Program, known as CHIP. Today, says Rosenbaum, who helped write many of the children's health provisions in those bills, Medicaid and CHIP together cover 1 in every 3 children in the United States. "So literally we've changed everything about insurance coverage for children and families, and we've changed access to health care all across the United States all as a result of reconciliation," she says. Medicare Changes Budget reconciliation has also been an important tool for changing the Medicare program. "Going back even close to 30 years, if you start say in 1982, the reconciliation bill that year added the hospice benefit, which is very important to people at the end of life," says Tricia Neuman, vice president and director of the Medicare Policy Project for the Kaiser Family Foundation. Over the years, budget reconciliation bills added Medicare benefits for HMOs, for preventive care like cancer screenings; added protections for patients in nursing homes; and changed the way Medicare pays doctors and other health professionals. Because the point of budget reconciliation was usually to cut the deficit, the huge Medicare program was nearly always on the chopping block. But there's another reason it became the bill of choice for other far-reaching changes.

6 "This happened primarily because it was the only train leaving the station, so if policymakers wanted to make a change in health policy, the only way to do it would be to amend a reconciliation bill, and that's really why it happened," says Neuman, a former congressional health policy staffer. In fact, over the past three decades, the number of major health financing measures that were NOT passed via budget reconciliation can be counted on one hand. And one of those the 1988 Medicare Catastrophic Coverage Act was repealed the following year after a backlash by seniors who were asked to underwrite the measure themselves. So using the process to try to pass a health overhaul bill might not be easy. But it won't be unprecedented.