"DWT": Legislating Common Sense

Federal lawmakers are weighing in on the issue of DWT, "driving while texting." Legislation introduced this past Wednesday would condition federal highway funding on states outlawing texting while driving. Congress cannot constitutionally pass a federal law outlawing this behavior, nor can Congress formally compel that states pass a particular kind of law. Jurisdiction over health, safety, and general welfare issues are reserved to the states as part of their constitutional police power. The Constitution, however, does give Congress power to dispose of federal funds as it sees fit. This spending power provides Congress a practical means to strong-arm states into legislating in a particular way, even if it cannot technically require them to do so.

Such congressional influence is particularly strong in the area of traffic safety regulations because federal dollars account for large portion of funding for state highway projects. Generally, the federal to state funding ratio on such projects is 80:20. In other words, state highway projects absolutely rely on federal funding. Congress has conditioned highway funds in the past to nationalize safety measures like seatbelt laws and minimum drinking ages. Fourteen states have already outlawed texting while driving - Alaska, Arkansas, California, Colorado, Connecticut, Louisiana, Maryland, Minnesota, New Jersey, North Carolina, Tennessee, Utah, Virginia and Washington. The District of Columbia has done so as well. That means there remain up to 36 states could be impacted by the bill introduced on Wednesday.

The data and studies available on this subject certainly favor a ban on DWT. A study from the University of Utah indicated that texting could make a driver 8 times more likely to crash than a driver not texting. By comparison, a BAC of 0.08% makes a driver 4 times more likely to crash, as does talking on a cell phone.

Technology and the wealth of communication devices available today are certainly advantageous and convenient. However, like other modern conveniences, use of these devices must be responsible and smart. Ideally, laws that legislate what seems to be (or should be) common sense behavior would be unnecessary. Unfortunately, many see measures like speed limits, seatbelt requirements and DUI laws simply as rules rather than safety regulations. I am not naive enough to believe that DWT laws will stop all car operators from texting. Analogously, DUI laws have certainly not eradicated all drunk driving. Hopefully, though, a DWT law on the books might deter some from the activity or, at the very least, continue to heighten awareness of DWT as a safety issue. In any regard, I applaud the efforts in Congress to move toward a nationwide prohibition of DWT.

NY Times: Senators Seek Ban on Texting While Driving

CNN.com: Senators Push Nationwide Ban on Texting While Driving

Denver Post: Colorado Drivers Know Risk of Texting but Still Do It

Thinking Comprehensively About Development

In an interview with PBS's Blueprint America, Rep. Jim Oberstar discusses the current state of transit policy in the U.S., his theory on how that policy needs to be reformed, and how his Surface Transportation Authorization Act of 2009 would help steer the country in that direction.

I appreciate that Rep. Oberstar recognizes that land use and growth should drive transit development rather than the opposite. Though his bill deals specifically with transit funding and planning, the fundamental principle he seems to advocate is a comprehensive analysis of all aspects of proposed urban or suburban development. A common pattern in the U.S. today is for a new road to be built first, and development around that road comes later. This generally promotes piecemeal, spotty development. Such an approach really prevents planners from accurately projecting the needs of transit, utilities, and public services required for the development.

To me, Rep. Oberstar is promoting an approach that will strive, as much as possible, to get things right the first time. Comprehensive planning could help to avoid such problems like needing to retrofit a larger roadway or a rail system onto an area that is designed to accommodate it. Such planning relates to the sustainability of development. Are we promoting development that will be accessible, livable, and desirable for years to come? Or are we thinking only about capitalizing on opportunities in the short-term? Ideally, projects could be developed in a way that attempts to satisfy both the goals of attracting private investment and building a community that will become and remain a community rather than just another place on the map.

Reducing Energy Consumption and Carbon Emissions Through Building Code Reform

As Edward Mazria explores in his piece, "Oh, those sexy building codes," the real key to both reducing energy consumption and dependent carbon emissions in the U.S. is tackling the problem in the small scale. Mazria demonstrates, with projected data, how the building code requirements of Section 201 of the Waxman-Markey bill (H.R. 2454, American Clean Energy and Security Act) would have a greater impact on carbon emissions than would building 100 nuclear power plants. The nuclear plants would reduce carbon emissions; however, those plants would merely serve as a replacement for other energy sources and not affect actual energy consumption.

On the other hand, Mazria's article reveals an opportunity to dramatically impact both energy consumption and carbon emissions. The built environment is in constant flux, and Mazria states that between now and 2050, 75% of the current built environment will have either been renovated or rebuilt. According to Mazria, assigning energy requirements to each of these projects will, in concert, reduce both energy consumption and carbon emissions by close to 50% of current projections by 2050.

Mazria's article illustrates a point that I made in my initial post discussing the concept of sustainability. Effective change at a small scale is much simpler and much more accessible at this time than a top-down, heavy-handed regulation scheme. The key, of course, to that statement is quantity. Individual decision makers must be convinced of the benefits - economics, environmentalism, morality, publicity, self-satisfaction, etc. - of making a sustainability decision in order for the concerted effort to be effective. To mandate that decision, to some extent, is certainly one solution, as is offering tax breaks, energy rebates, mortgage benefits, or other incentives. Ideally, an individual would examine her role in and her effect on her community and make decisions that are as mutually beneficial as possible. But, if some mandatory encouragement is necessary to spur such thinking, I can live with that.

RESPONSE TO COMMENTS on Approaches to Cutting Healthcare Costs

First of all, thanks to Kevin for you comments. I'll always toss around the word "discuss" even when I'm just talking to myself. I do, however, truly believe that a more astute, thorough discussion of the issues raised on this blog will result from several minds coming together to think and talk about them.

If you did not see them, here is a link to Kevin's comments regarding "Approaches to Cutting Healthcare Costs."

A few thoughts as an introduction. Our civil justice system's aim to compensate injured parties for encroachments on individual rights and any harm sustained as a result. In medical malpractice cases, these consequential damages can be significant, particularly in cases involving a wrongful death, loss of ability to work, etc. However, when we hear about extreme awards to plaintiffs, often those involve some measure of punitive damages, meant not to compensate the plaintiff but rather to punish the defendant for his actions. Thus, by seeking these damages that are outside of what the plaintiff requires to be made whole, patients and their attorneys have added an extra layer of potential cost for medical professionals, facilities, and insurance companies. Those are my two points: (1) The potential costs of defending and/or losing litigation are factors that must be built into medical fees and insurance premiums, and (2) patients have had and continue to have a role in increasing costs they must bear. (For some data, see the article Medical Malpractice Awards at Record Lows. Even though the article states that malpractice related expenses are declining, malpractice insurance premiums in 2006 still represented about 12 billion dollars of healthcare costs and actual malpractice payments were another 3.9 billion.)

Kevin observes that insurance policy holders bear these increased costs twice - once in insurance premiums and again in medical fees actually incurred. I think this occurs sometimes, but not always. If we place policy holders on a spectrum based on their level of insurance coverage, we would have on one end policies with more coverage; insurance picks up almost all expenses beyond co-pays and deductibles. On the other end of the spectrum are policies with less coverage, and holders may be left with additional responsibilities once that coverage is exhausted. Generally speaking, on the "more coverage" end of the spectrum, policy holders absorb rising costs in insurance premiums, and on the "less coverage" side, policy holders probably absorb more of the rising costs in fees not covered by their insurance plan. Obviously there are a host of stops between "more coverage" and "less coverage" where patients do bear costs both in their insurance premiums and in any fees not covered by their insurance.

At different points in his first paragraph, Kevin asks (1) how the legal system could be changed for the benefit of healthcare costs and (2) how insurance companies could be better regulated to keep costs down and coverage up in spite of potentially excessive costs like litigation. I like that we are addressing these two side-by-side. As to # 1, I do not see the legal system changing dramatically. While there's no bright-line limit on punitive damages, the Supreme Court indicated in State Farm v. Campbell that anything more than a single digit ratio of punitive:consequential damages would probably violate a defendant's due process. A cap on punitive damages, probably in relation to the consequential damage award, is about as much regulation as I believe the legal system will see. Plus, I am leery of limiting a patient's right to seek redress for his injuries, particularly in light of data suggesting fewer injured patients are receiving malpractice awards or settlements. See Medical Malpractice Awards at Record Lows. However, a decline in awards or settlements could speak to the quality of claims being brought by patients, not necessarily a turning of the tide against patients in litigation.

For me, that leaves either the insurance companies or the medical industry itself as sectors in which government regulation could help to lower healthcare costs. Frankly, I am not sure what cost-control measures would work, outside of government financial subsidy on one end or the other. Could the government attempt to make fees for medical procedures somewhat uniform, thereby essentially capping the medical fees? Could the government somehow cap insurance company profits or revenues or generate a uniform system of calculating insurance premiums? While they are not unregulated, both the healthcare industry and the insurance industry function essentially as private, for-profit ventures. And while some industries, like airlines, are paring back services so they can lower prices during the tough economic times, the medical profession particularly still fosters competition geared toward improving and expanding services. For example, pregnant couples like labor and delivery units with remodeled rooms, wi-fi, whirlpool tubs - all the bells and whistles. The point I want to make is that we are talking about cutting costs in an industry where bigger, better, and nicer generally thrives. Because of its nature alone, cost-cutting will not be an easy task.

As to Kevin's related question about pharmaceutical companies and insurance, I am sure insurance companies offering prescription drug plans must absorb the costs of pharmaceutical litigation somewhere along the line. If the "retail price" of drugs reflects all of its maker's costs - including potential litigation - and policy holders pay a low co-pay, then any fluctuation would fall to the insurance company, I suppose.

I guess the take away message from this longer-than-necessary post is that, flawed as it may be, I do not see much potential for change in or regulation of the legal field as it relates to healthcare costs. Some limitation on punitive damages could help, and evidence seems to suggest that medical malpractice related costs are currently on the decline. However, the medical malpractice lawsuit will never go away; it serves two immediately apparent and necessary functions - (1) a protection for patients who receive substandard care and (2) a quality-control measure for medical personnel. The system is what it is, and no matter what healthcare reform comes down the pike, costs related to the legal system will be an inescapable part of that discussion.

Approaches to Cutting Healthcare Costs

I came across this letter to the editor published by Rep. Dave Camp (R - Mich.) in the Washington Post the other day. In it, Rep. Camp identifies three strategies for lowering healthcare costs for the average American. Two of his three suggestions I cannot really dispute; they are, more or less, common sense solutions. The Congressman calls for reform of insurance regulations. I cannot agree more, particularly if no drastic healthcare overhaul comes in the near future. If insurance companies are to continue to have a dictating role in healthcare, the regulations need to reflect and appropriately address that role. Rep. Camp also highlights the need to "eliminate the waste, fraud and abuse in Medicare and Medicaid," a noble goal, if not a bit aspirational.

The Congressman's third cost-cutting measure is the one I would like to spend a few moments with, and I have two general points I would like to make about his perspective. The Congressman advocates eliminating "defensive medicine," which he defines as "doctors order[ing] costly and often unnecessary tests just to avoid being sued." My first point is somewhat tangential, so I will dispose of it as quickly as possible. I hope that preventative care is not unnecessarily victimized as part of Rep. Camp's onslaught against defensive medicine. While preventative care can increase avoidable healthcare costs for healthy patients, early detection of serious conditions can reduce costs of treatment. Also, exchanging preventative care for primarily reactionary care raises issues about the quality of healthcare being given and received. This segues to my second point about defensive medicine.

Rep. Camp contends that medical professionals at times order tests just as means of protecting themselves against lawsuit. While I will not dispute the truth of his contention, blaming the healthcare industry for these actions ignores a key foundational issue, namely, that doctors would not have to worry about lawsuits but for the litigiousness of patients. As a former private practice attorney, Rep. Camp should be well aware of this principle. An attorney owes his client an ethical duty to fully explore all relevant and valid aspects of a legal claim or matter. Otherwise, the attorney is liable to the client for his failure to do so, should that failure harm the client in some way. I would guess that the Congressman would not support legislative limits on the thoroughness of legal representation. I see little distinction in principle between that scenario and medical care.

The question, then, is how defensive medicine would be eliminated. Would it be through limiting a patient's right to seek retribution for medical malpractice? Many patients over time have certainly abused that right, but is eliminating or severely limiting that protection really the solution to our dilemma of healthcare costs? While professional organization and licensing boards uphold the quality of care, I would speculate that the absence of this patient protection would have at least some degrading effect on the quality of healthcare generally received. At this point, I refuse to believe that a system which can provide both affordability and quality of healthcare is impossible.

Defensive medicine further raises the issue of universally defining adequate, excessive, and substandard care. Certainly existing professional standards could and should set the benchmarks; however, variations exist across specialties and geographic location. Should doctors be legally forced to find that ideal medium between too little and too much? Other factors encourage them to find that place - ethics and efficiency being two that immediately come to mind. Should legal ramifications force a physician to question a test that might or might not ultimately prove to be"unnecessary"? Could that physician find himself in a catch-22, where ordering the test might be considered defensive medicine while failing to order the test would be negligent?

Obviously, I do not have answers for these questions. I do applaud Rep. Camp and his colleagues for actively seeking means to provide accessible, affordable healthcare in this country. I do get the sense, though, that the Congressman's letter unfairly blames medical professionals for the practice of defensive medicine. Furthermore, the possible ramifications of the steps that would limit or eliminate defensive medicine must be considered - for the patient, for the physician, and for the general quality of healthcare. While I admittedly have provided little help in coming to a solution, I feel I have raised questions that ought to be considered as our lawmakers continue to debate the issue of healthcare reform.

Thoughts on Neal Pierce's "Obsolete Notion of States?"

In his recent piece, "Obsolete Notion of States?", Neal Pierce asks the question: "Are America's state governments becoming obsolete?" Taken out of context, this question borders on absurd. The states are governmental institutions enshrined in the Constitution and a necessary component of the federal government (e.g., the legislature). Besides, what would the United States be without the States?

However, in context, Pierce asks a shrewd question that ought to be given due consideration. Are state governments the right place to seat control of everyday affairs? To clarify, again, Pierce is not advocating for the dissolution of state governments. Instead, under his scheme, state governments could concentrate attention on their "indispensable priorities." For example, he posits higher education systems, a truly state-wide institution, the general governance of which can be relatively similar across all locations in the state.

What Pierce does propose is to vest greater autonomy in regions as the state's political subsidiary. Thus, for instance, Denver and its surrounding suburbs and communities would ideally form a regional council of governance that would foster cooperation among the individual members as well as promote consistency of policies that cross municipal boundaries. In fact, such an organization already exists to address some of the regional issues (e.g., regional transit, regional planning, water issues) in the Denver-Metro area. See www.drcog.org for more information. Pierce does not indicate whether he believes such regional organizations would be or should be granted binding authority, and, if so, how that authority would relate to the municipal authority of its members. Would the regional councils serve primarily as advisory boards and forums for inter-municipal discussion? Or would the regional councils essentially be another level of governance inserted between the state and municipal governments? In either case, more autonomy is given to the local unit of government to recognize, confront, and address issues specific to the local unit, rather than relying on a state legal scheme that must attempt to adequately serve the distinct needs of urban and rural regions within the state.

For Pierce, this approach makes sense because life in the United States does not revolve around the state. Rather, in terms of population, economics, jobs, etc., life occurs in metropolitan regions. The interconnectedness of these metropolitan regions - logistically and philosophically - is thus a key aspect of continued growth. Perhaps under Pierce's scheme, metropolitan areas in close proximity could jointly develop laws and regulations to make it easier for businesses operating in both areas - establish one level of governance rather than force corporate citizens to deal with the regulations of multiple municipalities or multiple states.

A crucial point is that power still resides in the state government. Any autonomy given to regions or metropolitan areas must be granted by the state. State governments would still exist to manage state-wide institutions (e.g., higher education, as noted previously) and to represent the interests of its subsidiaries in the federal government. As Pierce notes, given the financial difficulty facing many state budgets, reducing the role of state government may be a timely means of easing those crises somewhat.

Taken in context, Pierce's question about the obsolescence of state governments may be a bit less absurd than previously thought. Nonetheless, this delegation of authority by the state to its regional or metro units remains quite unlikely. Does it make sense in that it conforms more to the realistic division of life in the United States? Yes. But many obstacles exist, not the least of which is rural resistance to a scheme that would no doubt increase urban progressive influence in the state and federal government. However, as citizens, we should be constantly mindful both of reality and aspiration and encourage our law and policy makers to be so as well.

A Few Thoughts on Sustainability

To kick off this effort, I would like to put some of my ideas about "sustainability" on paper. I do not intend for this blog to become one purely or even primarily dedicated to sustainability. However, I do hope sustainability will be one of the considerations by which to weigh some of the ideas, policies, and decisions that will be discussed herein. In other words, I plan to consider the ramifications of a particular policy or action on the sustainability of the affected community and the sustainability of individuals' lifestyles within that community.

Now, what do I mean by "sustainability," a term that has quickly become a prevalent buzzword in today's culture. I think sustainability is too often linked to modifiers like "eco-" and "green"; by such use, its scope is unfairly limited. Dictionary definitions define the root word, sustain, more generally in terms of longevity, prolonging, or keeping up. With this denotation, sustainability becomes an evaluator with much broader application, and with that tool, we can examine each action, idea, and policy with an eye toward each's long-term value and applicability. This is no doubt the type of analysis conducted by shrewd executives and investors in evaluating proposed deals with significant financial stakes.

It seems intuitive, then, that this same analysis should be forefront in the minds of elected officials, public deciders, and policy makers who have our communities' and citizens' futures at stake. However, these persons must act and react within a fast-food life context - instant gratification and what-have-you-done-for-me-lately. Thus, decisions are driven by this short-term, quick-fix attitude, and such decisions do not often stand the test of time. I would be unfair if I did not require the elector to shoulder equal blame as the elected. After all, finger-pointing is not my aim. Rather, I want us collectively to recognize the foundational problem at hand and, by doing so, take the first step to rectifying it. Thus, I believe that each issue, no matter the subject, deserves a sustainability analysis in terms of the longevity of its benefits, consequences, and relevance. Questions of economic policy, healthcare reform, transportation goals - for each we should ask how this decision will help each of us prolong a viable lifestyle that benefits and upholds our community as an economic unit, social group, and geographic environment.

A final word about sustainability. Sustainability will not just happen. Nor will a top-down type scheme really do the trick. Sustainability builds from everyday decisions of everyday persons. Not to make it appear black and white, but each decision we make in our daily lives often has a more sustainable and less sustainable option. Some of these I hope to address with some thought here on this blog. Others might pop up as tweets as I confront them myself here in Denver. To make my intended point, a sustainable lifestyle requires some measure of individual responsibility, with a mind toward the social impact of that individual responsibility. I am currently reading a Wendell Berry commentary in which one of the main themes discussed is his idea of defining the individual in terms of his community. I hope as I get a better grasp on Berry's philosophy, perhaps I will be able to incorporate it in my musings here, as one of my aims in these writings is to explore how we each fit into our present communities and the reciprocal relationship in establishing and sustaining the viability of each.