Update: Hostage released! CCO bill moves forward as Senator Johnson changes her mind

Chris Lowe

On Tuesday Feb 14 the Oregon Senate sent Governor Kitzhaber and the Oregon Health Authority a valentine by passing SB 1580. That's the bill approving the OHA's business plan for the Coordinated Care Organizations that are the lynchpin of Kitzhaber's effort to restructure the delivery of care through the Oregon Health Plan.

The fate of the bill had been thrown into doubt when Senator Betsy Johnson (D-Scappoose) joined the entire Republican Senate Caucus in signing a letter threatening to vote against the bill unless it was amended to bring CCO providers under the provisions of the Oregon Tort Claims Act that cap the liability of public employees and some state agents. In the event, Senator Johnson joined the rest of the Democratic Caucus in voting for the bill without the malpractice tort cap, so that SB 1580 passed, initially on a party-line 16-14 vote. Subsequently Senators Bruce Starr (R-Hillsboro)* and Jackie Winters (R-Salem) changed their votes from "No" to "Yes," for a final tally of 18-12 in favor.

The bill may not yet be entirely out of the woods, since the House is divided 30-30, and one Democrat, Rep. Mike Schaufler (D-Happy Valley) has shown himself willing to cross the aisle to interfere with health care reform legislation in pursuit of another agenda. The Oregonian reports at least House Republican raising the prospect of holding up the CCO bill as well for horse-trading on water and timber issues.

More optimistically for the bill's prospects, when the Joint Ways and Means Committee approved the bill by a vote of 19-6, only one of the seven House Republicans on the committee voted "No," Rep. Gene Whisnant (R-Sunriver), along with all five Senate Republicans. The vote suggests that the House Republican Caucus might not be in lockstep on CCOs. According to The Lund Report, Rep. Tim Freeman (R-Roseburg) says he intends to vote "Yes" on SB 1580 "because it is sound policy," though he also wants malpractice reform.

Unlike the Exchange bill that House Republicans plus Schaufler forced back into the Joint Ways and Means Committee, failure to pass the CCO bill would create a massive $239 million addition to the hole in the budget that would throw the whole session into chaos. The Lund Report quotes Senator Alan Bates (D-Medford) as saying the effect would be to destroy the Oregon Health Plan.

While SB 1580 does not include the malpractice award cap sought by Senate Republicans, it does include a provision for a legislative workgroup to propose malpractice reform that would apply more broadly than to just CCO providers. However, Senator Jeff Kruse (R-Roseburg) explained the Republican effort to put a CCO malpractice cap into the bill, which would only have gone into effect after the 2013 legislative session, as an incentive for serious reform in 2013. Senator Frank Morse (R-Albany) expressed skepticism that much would come of the workgroup, given the influence of trial lawyers among Democratic legislators.

Senator Johnson attributed her changed vote to concerns over legal and constitutional implications of the failed amendments, and circulated memos from the Department of Justice and OSHU lawyers reflecting those concerns.

It's good that Senator Johnson found a way to make the right vote. It remains disappointing that she lacked a sense of proportion regarding the consequences of the failure of SB 1580 for the OHP, the 2012 budget, and longer term potential federal funding of Oregon health care reform, compared to the small amount that would be saved by a CCO malpractice cap. Better perspective might have prevented her from getting drawn into this tail-wagging-the-dog invented drama. Two senators who are also doctors, Bates and Elizabeth Steiner Hayward (D-Beaverton/Portland, recently appointed to fill Suzanne Bonamici's seat), who have some skin in the game as far as malpractice caps go, are on the Human Services subcommittee of Ways and Means. They could probably have secured the amendment there had they chosen to, but had the scale of issues in proper view.

Meanwhile Senator Johnson now faces Republican imputations that she switched her vote in a quid pro quo for an unusual earmark for school flood damage repair in Vernonia. Johnson, Senate leaders and Governor Kitzhaber all strenuously deny that any such deal occurred.

*The bill history (click on "Senate Measure History" link) on the Legislature's website indicates only Senator Winters changing her vote, which may mean that Starr voted "Yes" to begin with, or may be an error. Several news sources report the original vote as 16-14.

By Chris Lowe Feb. 15, 2012