Sorry Republicans, Sometimes Regulations ARE Good Things

Tennessee Congressman Diane Black told MSNBS’s Chuck Todd in an interview Friday that “hospital emergency rooms should be able to turn patients away to help keep health care costs down.” There are so many moving parts to the healthcare debate, and so many times when one position seems to contradict another, that it can be difficult for a politician to accurately explain a position in a brief television interview. This is exacerbated when the interviewer clearly has many questions and wants to get through them as quickly as possible, while the interviewee wants to limit responses to prepared talking points generating easily tweetable sound bites. Time is money, after all, which is sort of the crux of the argument Congressman Black is making. She does not get a pass for her statement, however, as frustrated Americans know the excuse of “misstating” or “not being clear enough” is often just cover for defusing those angry at a politician’s statements while they wink at their targeted supporters and those supporters offer a thumbs-up in return.

Congressman Black is running for Governor in Tennessee in 2018. It will be a crowded field, and would have been even more crowded if some of those with ambitions of higher office had not decided to pursue the Senate seat Bob Corker is vacating instead, specifically, her colleague from Tennessee, Republican Congressman Marsha Blackburn. It should be clarified that both women prefer to be addressed as “Congressman” and not “Congresswoman” as did former Wyoming Representative Cynthia Lummis. The primary races for both offices will not be about gender-neutral titles, but about who can run harder to the right.

As recently as 1996, Bill Clinton (the Democrat) won Tennessee in the general election for president. He won it both times he ran for President. Tennessee had a tendency of going red in presidential elections before Clinton, and George W. Bush flipped the state back to red with 51.2% of the vote in 2000. It has gotten progressively (no pun intended) redder in the four election cycles since. For all the talk about Florida and “hanging chads” in 2000, is cannot be forgotten that Democratic nominee Al Gore lost his home state of Tennessee, a state where the Gore family is as much political royalty as the Kennedy family is in Massachusetts. In 2016, Hillary Clinton tallied only 34.7% of the vote in Tennessee. Only in 1972, when incumbent Richard Nixon destroyed challenger George McGovern (winning 49 states and holding McGovern to 37% of the vote nationwide) did any candidate for President in Tennessee exceed 60% of the votes cast or win by more than a 25% margin. The Trump message resonated (even echoed) in Tennessee in 2016, and candidates like Congressman Black are making sure THEY sound a whole lot like candidate Donald Trump, so they can appeal to the same voters in 2018.

That we must discuss healthcare (and the right to access it) in 2017 in America is something we (as a society) should hang our heads in shame over. That the argument should be used to score political points while people are suffering or dying from lack of access to healthcare should not only be exclusionary when seeking political office but should make the speaker taking those political cheap-shots a point of ridicule. Far from ridicule though, positions like those taken by Congressman Black drive donations and increase name recognition among key primary blocs. Even better for Black and her Republican counterparts, the comments on the mandatory treatment in emergency rooms seek to provide cover on the larger issue of universal healthcare. The argument she makes is not that the healthcare system is in tatters (and overpriced) because Republicans have underfunded it AND have spent a decade seeking to undermine and then destroy the Affordable Care Act. No, she argues, the reason healthcare is in shambles is because poor people (especially BLACK poor people) abuse the system and go to emergency rooms with minor issues like headaches and sore throats AND because regulations (God, Republicans LOVE to blame that) insist that hospitals and hospital employees (if they seek any Medicare reimbursements) must provide service even when they (as the professionals in the industry) know what is really best for all concerned and should be trusted to put their stellar judgment skills to use.

Congressman Black made just this sort of argument, and as someone who had a career as an emergency room nurse before her election to college, she made the argument exactly the same way anyone from a Wall Street financial firm or habitual polluter seeking deregulation once the furor over their prior bad acts has abated would have. She claimed to know better. She claimed that people would be fine if regulations were relaxed and if businesses decided for themselves. She argued that, in effect, more people are worse off now than the few who suffered before. The argument is mostly false, but she must stick with the Republican (especially, Trump) script. Specifically, she said, “There are people that came into my emergency room that I, the nurse, was the first one to see them. I could have sent them to a walk-in clinic or their doctor the next day, but because of a law that Congress put into place to say, no, I have to treat everybody that walks into that emergency room. And disallowed me from using my good judgment skills, of which I was trained to do, and doctors are as well.”

But when Congress passed the Emergency Medical Treatment and Active Labor Act in 1986, it was because people like Congressman Black either were VERY wrong on their determinations of who needed to be treated immediately and who could wait to visit a clinic or personal physician tomorrow OR they were given orders by (or had their judgment overruled by) hospital administrators who valued the expenses to be saved by turning people away more than they valued the lives which might be lost by that action. They failed the “Trust us, we will do the right thing” argument that people so often use when lobbying against regulation. Hospitals turned people away and people died, some on the sidewalks outside those very hospitals. As they used to do back them, but not so much now, Congress saw an issue that needed addressing (and which their constituents were demanding they address) and they acted.

The simple truth is, Republicans too often see regulations only as a cost to business. They ignore that the costs are often offset by other savings. Yes, the costs to a company are easily quantifiable on a balance sheet, which makes them valuable as talking points, while the generic (and often feel-good or preventive) benefits are less so. How many fewer Americans get cancer because the air is cleaner in most industrial cities than it was a century ago? Worse, when the costs are not borne by the company (or its customers and shareholders), taxpayers often get the bill for cleanup and long-term healthcare of those impacted. Overlooked just as often by Republicans is that most regulations, sadly, are not proactive. They are reactive. The Triangle Shirtwaist Fire in 1911 was one of the deadliest industrial disasters in New York City history with 146 lives lost and led to more than 60 workplace regulations, revolutionizing building and fire codes. The toxic smog that engulfed the small town of Donora, PA in 1948 (killing 20) led to the Clean Air Act. Reactions are not limited to incidents resulting in lost lives. Financial injuries can be as devastating as physical ones. Recent regulations like Sarbanes-Oxley and Dodd-Frank examine the circumstances where Americans were financially victimized, and ask, “How can we make sure this never happens again?” Sadly, that is the question leading to most reactionary regulations.

The Emergency Medical Treatment and Active Labor Act (EMTALA) was not a stand-alone bill. It was part of a massive bill known as the Consolidated Omnibus Budget Reconciliation Act of 1985. The bill covered everything from and an overhaul of the Employee Retirement Income Security Act (ERISA) of 1974 to price controls and supports for tobacco, to railroad funding, to disability insurance, even to how the United States Postal Service is required to operate and will be funded. Sure, Republicans in 2017 packed a lot into the recent tax bill, much of it having nothing to do with taxes. But back in 1986 (yes, the bill reads 1985, but it took so long to pass it became misnamed), things were different than today. One party did not (in most cases) seek to ram legislation through over the howling opposition of the other party. Remember how this time around Republican leadership cut deals with Senators like Bob Corker, Susan Collins, Lisa Murkowski, and Marco Rubio? Well, back in 1986, Republican Senate leadership would have cut similar deals with Democrats as well to ensure the bill passed overwhelmingly instead of by one or two votes along party lines. Bills like this were often titled with words like ‘consolidated’ and ‘omnibus’ and ‘reconciliation’ as they were like a snowball rolling down a hill, getting larger and larger as they picked up more snow (or in this case, amendments). Republicans controlled the White House and the Senate then, while Democrats had a massive majority in the House. Today, that means gridlock. Back then, it meant a bill with literally, something for everyone.

For trivia buffs:

Ever leave a job and were offered the opportunity to continue your healthcare coverage? COBRA, right? Guess where the requirement to make you that offer comes from? The Consolidated Omnibus Budget Reconciliation Act (COBRA). That was just one of many healthcare-related items tucked into the bill.

Want some more trivia?


The bill also contained legislation that amended both the Internal Revenue Code and the Public Health Service Act of 1944. The legislation initially denied tax deductions to employers (with 20 or more full-time equivalent employees) for contributions to a group health plan unless such plan meets certain continuing coverage requirements. After being amended, the change stipulated that if an employer chose a health plan which did not meet the required criteria (or failed to offer coverage at all), an excise tax would be levied. Funny, that sounds a LOT like Obamacare and was passed overwhelmingly by a Republican Senate and signed into law by none other than the patron saint of modern conservative politicians Ronald Reagan.

Congressman Black argues that many patients seen in emergency rooms should instead have been seen (and would have if not for EMTALA) in walk-in clinics or in family doctor’s offices. While a valid argument, the Congressman ignores a key component of the healthcare argument: money. The issue Congressman Black raises is not a general one, about not too sick people showing up in emergency rooms seeking treatment. If the people have insurance, and are willing to wait, most hospitals would be glad to have them as patients. No, the patients Black wants to turn away are those without insurance. EMTALA applies to hospitals. A walk-in clinic or family practitioner would have no legal obligation to treat a patient without insurance and otherwise unable to pay. They would refer those patients to the emergency room at their local hospital.

Without access to other healthcare, most of the patients arriving at the emergency rooms would end up there eventually, as that sore throat worsened (or was strep) or became complicated by spreading (ear and nasal infections) or leading to high fever or pneumonia. Also, going untreated puts other at risk, and not just members of the patient’s household. Many poor cannot afford to miss work any easier than they can afford healthcare. So, they are most likely going to go to work sick, and risk contaminating coworkers or customers. Taking the time (and the expense) to treat a minor illness in the early stages can still be more cost effective than denying treatment until the illness reaches a critical stage.

What Congressman Black also ignores (conveniently) is that hospitals and insurers have built-in a premium for dealing with these uninsured patients. A 2006 study (remember, before the Affordable Care Act) estimated that the average Californian incurred $455 per year in premium increases and more expensive health care costs built-in by hospitals and insurers to account for the expected losses from providing coverage to uninsured patients who would not eventually pay over time out of pocket. Congressman Black wishes to return America to the days when hospital administrators could decide (based on profitability) how sick a patient was and whether they needed immediate (emergency) care or not.

Remember back in 2009, during the debate about the Affordable Care Act, when 2008 Republican Vice Presidential nominee Sarah Palin posted this on Facebook, “Seniors and the disabled will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care.” Obamacare never led to ‘death panels’ like Palin warned, but moves like those proposed by Congressman Black might. Is the current argument not to allow hospital administrators to make subjective judgments (often based on ability to pay and perceived value to society) on whether someone should receive healthcare or be denied until their condition worsens considerably? Sure, they could be classified as ‘treatment panels’ first, but let sick people go untreated long enough, and the term ‘death panels’ will be resurrected.

Deductibles paid out of pocket by those actually covered by insurance rose from $303 in 2006 (when the earlier study was published) to $1,505 in 2017 according to the Kaiser Foundation. It would follow that the $455 built-in by hospitals and insurers has increased in similar increments? If in 2018, EMTALA was reversed (or significantly amended), would premiums decline significantly? Would fees for services charged by hospitals? In effect, politicians like Congressman Black want to remove the mandate to provide services without instituting mandatory cost reductions. Sadly, this happened with the Affordable Care Act as well. The United States government is the largest purchaser of healthcare and prescription drugs in the world, yet strangely, seems to never exercise that leverage to drive-down costs. If the mandates of EMTALA are removed, but cost reductions are not mandate, Americans would all keep paying progressively more for care and insurance while hospitals and insurers reaped an enormous windfall and sick, poor people died on the sidewalks outside hospitals.

What Americans need is not a scaling-back (or repeal) of EMTALA. The answer is a dramatic expansion of the Affordable Care Act, and dramatic expansion means universal health care coverage. If poor people had access to insurance, and could go to family doctors in their neighborhood or to local walk-in clinics, they would not burden emergency rooms. The problem Congressman Black raises would still be solved, just as it would in her proposed solution, but no one dies needlessly in the latter. The expanded ACA should mandate premium reductions (or at least, premium stability) and should also mandate across the board reductions in fees charged by hospitals and other medical providers. Right now, as much as 55% of emergency room care goes uncompensated according to a 2017 study. Why would the logical solution not be to find ways to get emergency care providers paid instead of finding ways for them to avoid treating patients?

Well, politics is not about logic, nor about providing quality healthcare at affordable prices, even if the politician was once an emergency room nurse. Politics is about blame, and assigning blame. People are furious healthcare costs keep rising. Even though Americans have come so far, people are still racist. And even people the tax table would decide are poor like to find some group even poorer than they are to point the finger at as a way of feeling superior. Sadly, this is America in 2017, with President Trump leading the way and candidates like Congressman Diane Black following his lead. It is backwards thinking. It argues that for one group to rise, another must suffer. It argues for repeal of EMTALA and the ACA instead of expansions that would cover more and cost less. As backwards as the thought process might be, Republicans have used it for years to win elections, and clearly candidates like Congressman Black plan to roll the script to 2018 and keep repeating the lines. The way to shut them up, and to flip the script, is to vote them out of office and to replace them with people espousing common-sense solutions that benefit the majority of Americans.

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