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Legislative sausage-making: How a bill does not become a law

Sen. Amy Klobuchar’s so-called neurology amendment adds just one word to the Senate’s health care bill. The idea has bi-partisan support, but it doesn’t seem to be going anywhere.

Legislative sausage-making: How a bill does not become a law
MinnPost illustration by Hugh Bennewitz

WASHINGTON, D.C. — Laws are like sausages,” goes the famous quote often attributed to the Prussian Chancellor Otto von Bismarck, “it is better not to see them being made.”

Exhibit A in that argument could easily be Sen. Amy Klobuchar’s neurology amendment to the Senate’s now-passed health care reform bill. The measure has bi-partisan support, and the Republican who signed on is a Maine centrist who has been wooed for months on health care. It has the support of many in the health-care industry, and so far no one has come out vehemently opposed to it.

But when the final version of the Senate’s health care bill was unveiled, Klobuchar’s neurology amendment was nowhere to be found. Whether it will find its way into the merged and final bill remains to be seen, but all signs point to probably not.

In fact, the biggest hurdle facing the amendment at this point has absolutely nothing to do with the substance of the amendment itself.

Simply put, there are just so many big differences between the House and Senate bills (like abortion funding restrictions and the inclusion of a public option) that negotiators are hesitant to add anything new to an already delicate equation, according to several sources close to the negotiations who asked not to be named because they were not authorized to speak about them.

The “Neurology Amendment,” as it’s known in Klobuchar’s office, isn’t exactly cumbersome. It would add just one word — neurology — to the more-than 2,000-page bill, allowing neurologists access to a new Medicare bonus program that would financially incentivize primary-care providers who bill for primary care at least 60 percent of the costs on their billing statements.

“Essentially, if they do a lot of face-to-face [care] they’d be able to receive a bonus under Medicare,” said Mike Amery, legislative counsel for the American Academy of Neurology. The academy is based in St. Paul, Amery works as its chief lobbyist in Washington.

Sen. Amy Klobuchar
Sen. Amy Klobuchar

The Medicare bonus program is new to the bill, and there’s no guarantee that it will even survive the merger of the House and Senate bills, but it’s seen as likely to.

The idea for a primary-care performance bonus is credited to the Medicare Payment Advisory Commission (MedPAC). The group describes itself on its website as “an independent Congressional agency established… to advise the U.S. Congress on issues affecting the Medicare program.”

The fields listed in the program are geriatric, internal, family or pediatric medicine. As of now, Academy of Neurology researchers say that their field is the only one that, on average, meets that performance standard and isn’t included in the provision.

Advocates say that omission may eventually incentivize would-be neurologists to avoid the field in favor of something more lucrative.

“We are concerned that the exclusion of neurologists from this payment structure may affect access to neurologists, the principal care providers for people with neurologic diseases like Parkinson’s, ALS, Alzheimers, multiple sclerosis, epilepsy, traumatic brain injury and stroke,” wrote Amy Comstock Rick, CEO of the Parkinson’s Action Network in a letter to Klobuchar.

The only potential argument that has been openly made against the neurology amendment can be found tucked into a Nov. 12 letter from MedPAC to Missouri Democratic Rep. Russ Carnahan, who had asked the group why neurology wasn’t included in their original proposal.

“Because the Commission recommended the payment adjustment be budget neutral — and as such bonuses to primary care physicians would come from reductions to other physicians’ payments — the pool of dollars to be redistributed is constrained. Therefore, the Commission understood that in order to effectively target the payment adjustment to the providers whose services are most undervalued, the breadth of providers who might receive the bonus would also be limited. Although, once again, it made no specific pronouncement on neurologists.”

A request has been made by Klobuchar’s office to the Congressional Budget Office to score the neurology provision on its own. The CBO hasn’t yet issued one.

The legislative strategy on the neurology amendment was simple. Pick up a broad group of sponsors and hope that said senators would successfully prevail upon leadership to include the provision.

Klobuchar landed two other Democrats — Sherrod Brown of Ohio and Barbara Mikulski of Maryland — but her biggest “get” was Maine centrist Republican Susan Collins, who had long been courted as a possible crossover voter on health care.

“That’s why you do them with other people — that’s why I picked Susan Collins as my co-sponsor on the neurology one, because she may be still in the game on the final vote,” Klobuchar said of her strategy in mid-December.

Sen. Susan Collins
REUTERS/Jonathan Ernst
Sen. Susan Collins

The problem was that Collins hadn’t yet supported any Democrat-backed health care plan when it came to the floor. She didn’t vote to begin debate and wound up opposing ending debate and voting no on the bill on Christmas Eve. Based on her recent statements to the press, there’s little or no chance she’ll back the merged bill once it’s finally revealed, and any leverage she may have had was diminished greatly because of that.

Klobuchar’s office hasn’t given up on the measure — far from it, aides said. Staffers have worked the phones and e-mail with House and Senate colleagues, particularly committee members and staff likely to be party to the negotiations.

“Sen. Klobuchar is continuing to work with her colleagues in the House and Senate to include this,” said spokeswoman Erikka Knuti. “This is not off the table by any stretch of the imagination. We’re still working on it.”

That may be true, but it’s also not her highest priority at the moment. That priority making sure a value-added index is included in Medicare reimbursement rates, a plan that would boost Medicare dollars to high-achieving hospitals like the Mayo Clinic in Rochester, which only gets half as many dollars for the same procedures as some hospitals in Florida and Texas.

Contacting lawmakers isn’t a random enterprise for Amery.

On Dec. 16, he popped into a fundraiser for Iowa Sen. Tom Harkin, chairman of the powerful Health, Education, Labor and Pensions Committee — a position the late Sen. Ted Kennedy used to craft one of the first versions of this health care reform bill. There, he spoke with Harkin’s chief of staff, whom Amery said responded “favorably” to the amendment.

The next day, he met with staff in House Speaker Nancy Pelosi’s office, with similar results.

The clock is ticking. The House returns to Washington today, with leaders likely to lay out their health care strategy during an annual Democratic caucus retreat Thursday and Friday. The Senate returns Jan. 19 — and from there it’s an all-out sprint to pass the bill by the president’s State of the Union speech (which hasn’t been scheduled, but is expected to come in the last week of January or first two weeks of February.)

“You know, it’s getting later and later,” Amery said. “I’m just playing every angle available to keep this issue on the table.”

There are avenues available if the amendment doesn’t get added. Later this year will be a series of implementation rules, often known as the “technical amendments.” Convince the powers-that-be that neurology’s omission was a simple accident, and that could work.

A provision could be tacked on to a must-pass bill, introduced as an amendment in the course of normal legislation or even introduced as a stand-alone measure. As of now, all options are on the table.

“I don’t know how this works out,” Knutti said. “We just keep trying.”

Derek Wallbank is MinnPost’s Washington, D.C., correspondent and can be reached at wallbank[at]minnpost[dot]com.