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Scorched Earth

by Emily Friedman

First published in Hospitals & Health Networks OnLine, February 3, 2009

During that short, sweet accountability-free period between a presidential election and the inauguration of the next administration, the outgoing leaders tend to do their best to "cement their legacy," preferably in very deep cement for the newcomers to step in. Although this is a time-honored tradition in which both major political parties have indulged, it makes for rotten policy -- especially when it comes to health care -- and should end.

Emily Friedman

Emily Friedman

It's called "scorched-earth policy," an ancient technique that was practiced by some of the earliest armies. One group of combatants involved in the Greco-Persian war that eventually led to the siege at Thermopylae and the deaths of 300 Spartans in 480 B.C. was the Scythians, who, in battling Darius the Great of Persia, destroyed the food supplies and poisoned wells that the Persian soldiers needed to survive. The Gauls did the same to Roman troops, as the Saxons did to the Vikings. Centuries later, Russians, retreating in the face of Napoleon's invasion of their country, left nothing to eat for an army that had to live off the land. Kit Carson burned the Navajos' crops and killed their livestock; a century later, the United States savaged the Vietnamese countryside with strikes of jellied gasoline known as napalm to destroy the enemy's hiding places. Sometimes this approach led to victory-but it always produced suffering, starvation and death.

Unfortunately, the same philosophy has been followed by U.S. presidents during that golden period between an election that will usher in different leaders and the inauguration of those leaders. Because this is usually a holiday period when people are busy with other things, and Congress, if it is in session, is often missing most of its members, it's an ideal time to try to get away with as much as possible.

Pardon Me?

One part of this is presidential pardons. If it is the end of your second term and you therefore cannot run for the office again, you have little to lose if you hand out some goodies -- although it can cost you if you do it earlier in your term. Indeed, probably the most famous presidential pardon was the one granted to Richard Nixon by Gerald Ford after Nixon named him as vice president and resigned shortly thereafter. It is widely believed that this act doomed Ford's chances of winning the 1976 election-which he lost to Jimmy Carter. In 1986, right before leaving office, former New Mexico Gov. Toney Anaya, an opponent of the death penalty, granted clemency to all death row inmates, outraging the legislature. Since then, the governors of Illinois and New Jersey have done the same, although with less controversy. Ironically, supporters of former Illinois Gov. George Ryan, who issued the commutations and is now in federal prison himself for various corrupt activities, asked then President George W. Bush to pardon Ryan. The pardon was not granted.

Bill Clinton got into a mess of trouble with some of his pardons, which included 16 members of FALN, a Puerto Rican nationalist group that had engaged in extensive violence; Edgar and Vonna Jo Gregory, convicted of bank fraud, on whose behalf Hillary Rodham Clinton's brother Tony had lobbied the president (and allegedly received $106,000 from the Gregorys); Marc Rich, a fugitive financier whose family had made significant political donations to the Clintons; Susan McDougal, a Clinton friend who fell on her sword and went to prison rather than testify against them in the Whitewater matter; felonious Illinois politicians (what else is new?) Dan Rostenkowski and Mel Reynolds; and Bill Clinton's own half-brother Roger Clinton, convicted on drug charges.

Meanwhile, George W. Bush was heavily pressured to pardon (in addition to George Ryan) Conrad Black, the disgraced media mogul who looted his own company; Michael Milken, the Wall Street fraud-artist-turned-philanthropist (who allegedly spent big bucks trying to get the pardon, although he has served his time); "American Taliban" John Walker Lindh; and assorted convicted politicians. The former president did pardon crooked real estate developer Isaac Robert Toussie on Christmas Eve, only to reverse his decision the next day, claiming that he had not known that Toussie's father was a heavy donor to the Republican Party. It is not clear that a presidential pardon can be reversed; this was apparently a first. None of the above-mentioned supplicants were pardoned before Bush left office.

I do not tell this tale to depress anyone further about the state of American politics-I live in Illinois, remember-but rather to point out that a lot of mischief can be made when there's nothing to lose. And nowhere is that more true than in last-minute sneak-throughs of major health policies.

Those "Midnight Regulations"

In the world of policy wonks, they are known as "midnight regulations": rulings that are issued on Friday nights or during Christmas week or at other obscure times. And there was a flock of them last year. Technically, because a regulation must be subject to review and comment for 60 days before it becomes official, the last of these should have been issued before Nov. 20; however, in an interesting interpretation, the Office of Management and Budget decided that some of them were "not economically significant" and could be issued later and still take effect before the inauguration.

Among the more "significant" midnight regulations:

  1. Narrowing the scope of outpatient services that Medicaid beneficiaries may receive from hospitals, ostensibly because some of these services could be provided more cheaply outside the hospital environment (despite the fact that most physicians will not treat Medicaid patients in their offices). The impact of this on public and other safety-net hospitals will be devastating, not to mention the inevitable reduced access for patients.
  2. Allowing states broad authority to charge higher premiums and increase copayments for Medicaid patients for clinical services, prescription drugs and other benefits. In some cases, this can be 10 percent of the cost, which many beneficiaries cannot afford. States can then deny them the services or continued Medicaid coverage.
  3. Expansion of the "right of conscience" rule that allows clinical caregivers, pharmacists and others to refuse to participate in a procedure or treatment they find morally objectionable. This has applied mostly to abortion, but the expanded rule can involve many other procedures, including artificial insemination and sterilization. The new rule also covers all health care workers, no matter how tangentially they might be involved, and extends to the provision of information, counseling or advice to patients seeking help.
  4. New restrictions on the use of Family and Medical Leave Act benefits by employees.
  5. Changes in the definition of "uncompensated care" for the purpose of disproportionate share hospital payments that exclude most bad debt and physician services. This is yet another blow to safety-net hospitals. As any CFO can tell you, discerning bad debt from charity care is impossible in many instances.

On the environmental health front, we have these gems:

  1. High-volume livestock feeding operations will be trusted to monitor their release of pollutants into waterways; permits will no longer be required.
  2. Visitors may now carry concealed firearms in national parks. This should make things nice and safe for rangers in parks along the Mexican border, which are often used by drug runners.
  3. A new Environmental Protection Agency (EPA) standard that would have lowered the amount of lead that factories can release into the air was drastically weakened after the Bush administration intervened to increase the allowed level and exempt many polluters, far fewer of which will now be monitored by federal authorities.

And Then There's the FDA

Meanwhile, the embattled Food and Drug Administration, which has fallen down on the job in overseeing the safety of everything from pet food to prescription drugs, decided to get busy late in the year and issue a whole set of warnings and regulations, including:

  1. A new standard for the amount of poisonous melamine (that's what killed so many U.S. pets and Chinese infants) allowed in infant formula manufactured in this country; the level is actually higher than what has been found so far and is 20 times higher than what is allowed in Taiwan (issued the Friday after Thanksgiving).
  2. A warning against the use of the Fentanyl transdermal painkiller patch, which has been implicated in hundreds of user deaths (issued the Friday before Christmas).
  3. A warning against the use of 28 weight-loss products, some of which have been on the market for years; the list was expanded the next day to include 41 more dangerous diet drugs and supplements (issued Dec. 22 and 23).
  4. A draft recommendation that Americans-even young children and pregnant women-eat more mercury-contaminated fish ("it's good for you"); even the EPA couldn't stomach this one and argued against it (the recommendation had not been issued as of this writing).

What You Don't Do

Meanwhile, there are all those things that didn't get done, like addressing the disaster of nearly 50 million uninsured people, supporting safety-net hospitals instead of trying to bankrupt them, working to loosen credit markets for financially strapped providers, increasing Medicaid payments for physicians, recognizing the critical role of primary care in this system, and making a real commitment to health care information technology, e-prescribing and quality improvement, instead of just jawing about them or using them as excuses for the wrong kind of cost containment. And that's not to mention the total abandonment of protection of patient and hospital alike from inappropriate physician self-referral and health care predators and frauds. But then, this administration was heavily committed to deregulation, no matter who got hurt.

Undoing the Damage

All this has not been lost on the incoming administration or the new Congress; although it can be quite difficult to reverse last-minute regulations and rules, it's not impossible, and some members of Congress are promising to do just that. Writing on Politico.com, however, Erika Lovley and Ryan Grim observed that "it could take Obama years to undo [some of these] rules," especially those that were finalized before the Nov. 20 deadline. But some legislative relief is possible; also, the new administration may be able to reverse some of the more last-minute items-something that George W. Bush did to many Clinton midnight regulations. However, historically, the majority of these rules survive either in their original form or as amended by the president or Congress.

Where's the Outrage?

Writing in the New Yorker last November, Elizabeth Kolbert pointed out that "Since Jimmy Carter, every president has complained about midnight regulations, and, four or eight years later, every president has issued them." She adds that the motivations for the last-minute gold rush are many: ego, a desire to leave a legacy, agencies suddenly realizing they're running out of time, and cynical attempts to pay off favored persons and organizations at a time when there is virtually no accountability.

But why are we not outraged? Why don't we put a stop to this?

For one thing, there's a reason that this flood of goodies emerges in November and December, and it's not just the 60-day deadline: It's the holiday season. Most people are not glued to the Federal Register (well, yes, most people aren't glued to the Federal Register at all, but fewer of us are so engaged at that time of year). And in the weeks after a national election, politicians and officials who have spent most of the year campaigning often go on vacation or junkets. In other words, no one's minding the store. Besides, those who understand the arcane language of regulation are few and far between; it's largely incomprehensible if you don't know the dialect, and if someone is trying to sneak something through, the language used is likely to be even more obscure, and fewer people will understand what's going on.

This time, it's been somewhat different, partially due to a massive increase in use of the Internet since the last presidential transition, and partially because many lobbies have been less than enchanted with the outgoing administration and have watched it more carefully. Health care providers are deeply concerned about the midnight regulations affecting them, but the environmental lobbies are positively apoplectic about what was issued affecting their causes. So there was much more consciousness of what was going on, which led to more publicity and more protests.

Nonetheless, this is a pretty shifty way of making policy, and it is inappropriate in a democracy. Whether you agree with a given last-minute ruling or not, I would hope you would agree that decisions that can affect the well-being of millions of people shouldn't be issued almost secretly, without oversight, in the middle of the night. It may well take the new administration years to sort through all this stuff, and most of it will likely stand. What will have been accomplished, then, is government without the will of the people, and a colossal waste of time and money. There has to be a better way to leave a legacy.

Corrections from my last column: One of my readers was quick to inform me that Richard Scrushy of HealthSouth shame is not out on bail, but is in prison while appealing his conviction on federal bribery charges. Also, to many people's surprise, indicted Louisiana Congressman William Jefferson was defeated in his run for re-election in December.

Copyright 2009 by Emily Friedman. All rights reserved.

Emily Friedman is an independent health policy and ethics analyst based in Chicago. She is also a regular contributor to H&HN Weekly.

First published in Hospitals & Health Networks OnLine, February 3, 2009

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