From time to time, reaction to my blog reminds me that the public perception of lawyers as advocates and guardians of democracy has been poisoned by television and the latest legal outrage. That’s a pleasant way of saying that people do not hold attorneys in high esteem – sometimes for good reason, sometimes not.
Nearly every year, the legal profession engages in “navel gazing” to develop the program or standard that will turn public opinion around. I don’t worry about these things. I’ve read enough history and literature to know that lawyers never have and never will be as endearing as penguins and Koala bears. But then, most attorneys I know don’t set that as their goal. Instead, attorneys I work with fiercely insist on the rule of law as the best defense of democracy and alternative to trial by combat.
I help clients seek change in law, obtain advantage the law confers, or avoid penalties imposed by law. The common denominator is law, its interpretation and application to particular circumstances. In America, we don’t take people’s stuff without due process of law. Lately, some old friends have reacted to my criticism of health care reform as though I ought to ignore the law in favor of some mystical, higher, universal good.
In 1993, I served as legislative counsel to the House Financial Institutions and Insurance Committee and worked with a team of policymakers and lawyers to develop Washington’s health care reform. The following year, I worked as Deputy Insurance Commissioner for Health Care. For the next seven years, I worked with many of the brightest people in and outside of Washington to develop solutions to the problems of unaffordable and inaccessible health care and the insurance to pay for care. Some of those efforts survived but only after great turmoil and many other failed policies and ruined businesses. Here is what I learned from those earlier failures.
- Policy decisions that underlie reform and regulation affect real lives and wallets of real people.
- Businesses will fail; insurance producers will lose their livelihoods created from a lifetime of effort.
- Some people will get insurance; some will lose insurance.
- Some people will pay more for access to care; others will pay less.
- Markets will be disrupted and may or may not recover.
- When you work for the public, you don’t get to say to those hurt by reform, “too bad, change happens.”
- Health care costs money
- No matter how you choose to collect and distribute money to pay for care (Private Insurance, Medicaid, Medicare, Basic Health, High Risk Pools, or Workers Compensation), the bill must be paid.
- You can label a cut in practitioner reimbursement rates as cost containment; but, it’s still a cut in pay and sooner or later, the practitioner won’t accept the cut.
- Health care may be a right; but, America still wants care driven by capitalist, market dynamics and no one should be surprised when insurers, hospitals, consumers, and doctors try to reduce their risk and increase their gain.
- Someone has to pay for care; but, few people want to pay for someone else’s care.
- When you reach into my pocket, you haven’t found a new funding source; you just took my paycheck.
- If you make a change in policy, you should expect people to find a way to avoid pain.
- Regulators can insist that people eat their vegetables but that doesn’t mean they will.
- Legislators can command businesses to spend money on benefits but that doesn’t mean employers will spend more than the law requires.
- Regulators can demand that insurers sell insurance to sick people, but that doesn’t mean that insurers will go hunting for sick people to insure.
- If the law doesn’t achieve your objective, pretending the law doesn’t exist will only make things worse.
What I learned from Washington’s failed reform was that good intentions do not solve problems and that change does not happen in a vacuum or as planned. My memories drive a fierce insistence on the rule of law. Federal health care reform looks much like Washington’s earlier efforts – lots of programs, lots of rules, and mass confusion with overworked public employees subject to impossible deadlines in service of unrealistic expectations.
I can’t stop history from repeating itself but I can insist upon transparency, due process, and equal application of laws. When I believe that rules have been ignored or glossed over, when consumers or businesses have rules shoved down their throat without recourse, or when companies get an advantage over others in similar circumstances, my friends should not expect me to look the other way for some mystical, higher, or universal good even if its labeled health care reform.
With all due respect to my friends who still labor in the Legislature and in government agencies, if a statute creates a roadblock to your good ideas, adopt a bill and get it signed by the governor – that’s democracy. Statutes are not suggestions, it’s the standard for action. So if you want to adopt a rule, make sure you have authority. And don’t forget to repeal the rules you aren’t using and to adopt new rules when you need them. And no, a PowerPoint is not the legal equivalent of a rule.
Just because it’s health care reform, doesn’t mean the rule of law no longer applies. It’s what I do even if I am not as cuddly as a Koala bear.