At the time, it was a harsh attack on his political opponents, who had actually passed hundreds of pieces of legislation (whether simply passing legislation is actually productive, however, is a debate for another time). Today, the term is used so often by political pundits and talking heads that it comes across as redundant. And why shouldn’t it? The House of Representatives, regardless of which party is in control, seems largely focused on passing a highly partisan agenda without regard for whether that agenda could actually become law. At the same time, the Senate has become so bogged down by years of abuse of both the filibuster (a tool for prolonging debate) and the cloture motion (a tool for ending debate), that it seems as if nothing can pass without a 60-vote majority—a threshold that is almost never achieved.
But there is a big difference between a “do-nothing” Congress and an “accomplish- nothing” Congress, which is why federal advocacy efforts for MPL are still critically important.
Pursuing an agenda
Anyone who has followed the happenings in Washington, D.C., in recent years knows that nothing comes quickly when Congress is involved. As we saw with the Standard of Care Protection Act, legislation the MPL Association endorsed to ensure that federal healthcare guidelines could not be used to create new standards of care, it took five years to enact that brief bill into law, despite the fact that it had bipartisan support and no significant opposition.
Because congressional initiatives are such long-term ventures, even with an “accomplish-nothing” Congress in place, it is vital to engage with federal lawmakers to lay the groundwork for future triumphs. The
seemingly minor agreement you garner today may turn out to be precisely the missing piece needed to make your legislative goal achievable in future years.
This is the approach we are taking with the Good Samaritan Health Professionals Act, a measure that would provide immunity from liability lawsuits for care provided on a volunteer basis in federal disaster areas. While we have faced significant roadblocks along the way, we continue to solicit new cosponsors (in the Senate, 2019 has brought us the highest level of support ever), promote new champions (the bill will, for the first time, have two doctors leading the way when it is introduced in the House later this year), and reach out to the offices of freshmen legislators in order to build our base of support. We remain hopeful that these efforts will produce results during the current Congress, but we also know that, if current hurdles prove too challenging to overcome before the 2020 elections, in the next Congress we’ll have a solid foundation on which to build.
Federal tort reforms pose additional strategic challenges, and as a result, they require an even longer-term plan. Our preferred bill, the Accessible Care by Curbing Excessive lawSuitS (ACCESS) Act, has been introduced in the House of Representatives, but, unlike what we saw in the last Congress, it has no chance of receiving committee consideration or a floor vote, given the vehement opposition to tort reform among the House leadership.
We won’t be expending substantial resources lobbying for the bill. However, the mere fact that it was again introduced sends a message to supporters and opponents alike that this issue is alive. The gives us a chance to continue our efforts to educate members of Congress on the importance of federal MPL reforms. Then, in future years, when the political environment improves for this sort of legislation, we’ll have a fully informed foundation of supporters ready to help us move forward with the bill.
Defending our interests
Dealing with Congress, however, involves more than just advocating for responsible legislation. Sometimes, it is wiser to play defense than offense when dealing with the multitude of bills that are introduced during each session. This is why we are continually monitoring congressional activity and educating members of Congress about our concerns
whenever questionable legislation is being considered.
One such example is the so-called antitrust reform legislation. For many years now, members of Congress seeking to address allegations of anti-consumer activity in the health insurance industry have promoted legislation to repeal the limited antitrust exemption provided to insurers under the McCarran-Ferguson Act. Until relatively recently, those bills included broad language under which the legislation would have applied not just to health insurers but in addition to any insurer that provided policies that paid for medical expenses. Fortunately, working with a coalition of insurance stakeholders, we were able to convince the bill’s supporters to alter the text of the proposal to specifically carve out property/casualty insurers. While the bill (the Competitive Health Insurance Reform Act) is still not good public policy, our defensive efforts have made it substantially less onerous than it otherwise would have been.
More recently, we’ve seen Congress embrace attacks on binding arbitration agreements in the guise of the Forced Arbitration Injustice Repeal (FAIR) Act. While the impact on MPL insurers would not be as direct as that occasioned by the antitrust legislation, the bill nonetheless could potentially set a bad precedent by prohibiting binding arbitration agreements in most types of contracts.
With this in mind, the MPL Association is closely monitoring the activity on the bill, preparing ourselves just in case a real threat that it might be enacted emerges. At this time, it doesn’t seem like the bill is anything more than a token the House of Representatives might use to demonstrate its support for the personal injury bar. But we will be ready, in case the firewall in the Senate (which, so far, has shown no indication of supporting the legislation) shows any sign of weakening on the bill.
Known unknowns
What about those bills that haven’t yet been introduced? How do we prepare for bills that have yet to see the light of day?
The main answer is communication. While the “accomplish- nothing” Congress may be largely mired in partisan disputes and discussions of impeachment, that doesn’t mean nothing is happening behind the scenes. Issues such as cybersecurity and data privacy are of increasing concern for voters, and Congress pays attention to such things. Behind the scenes, intrepid committee staff are studying these issues and pondering what role Congress could play in addressing them. In some cases, they are even drafting the legislative frame- works for future bills.
Meanwhile, the MPL Association continues to reach out to the individuals leading the congressional efforts on these issues to stay on top of the latest developments and to provide information on how the various proposals could impact our industry. While these nascent efforts may be years from fruition, we are interacting with the denizens of Capitol Hill now to shape the policies that will come forward later.
Likewise, the Association has been actively engaged in telemedicine issues. Earlier this year, we sent formal comments to the Congressional Telehealth Caucus, making recommendations about future legislation on this issue. The Telehealth Caucus has no legislative authority—it doesn’t hold hearings or formally approve legislation. But the members of Congress on the caucus do sit on the important committees that oversee the work on this issue, and they will be drafting the legislation that will emerge at some future point. By reaching out now, we are ensuring that the MPL industry’s voice will not be lost in the commotion that will inevitably ensue when telemedicine legislation finally is introduced.
Whether the 116th Congress is a “do-nothing” Congress will be determined by history and, most likely, no small amount of partisan perspective. But while it does appear that this will be an “accomplish- nothing” Congress, the MPL Association is not taking anything for granted. We remain focused on the issues that matter to you, our members, and are committed to ensuring that your interests in Congress are protected, regardless of whether those interests arise next week, or years down the road.