From CNSNews.com, “Sebelius Says President Obama Has Instructed All Cabinet-Level Departments to Promote Public Health,” based on remarks by Secretary of Health and Human Services Kathleen Sebelius.

Sebelius explained that the Department of Transportation (DOT) can operate as a “health agency” by funding bike trails for communities, among other things.

“Transportation, you wouldn’t necessarily think that the Department of Transportation is a public health agency, but actually they have a lot to do with community health and public health because they have the funds for bike trails and walking paths and sidewalks and green space,” explained Sebelius.

So that’s context for Transportation Secretary Ray LaHood’s evangelizing for pedal parity, that is, his recent declaration that the DOT would make no distinctions between motorized and non-motorized means of transportation.

Here’s a suggestion: The Department of Transportation should concentrate on the efficient and safe movement of people and goods. We already have enough public health agencies.

CNSNews.com, April 8, “Sebelius: FDA Will Require Health Labels on Front of Food Packages“:

(CNSNews.com) — Secretary of Health and Human Services (HHS) Kathleen Sebelius said today that the Food and Drug Administration (FDA) is developing a new regulation  that would require food manufacturers to display nutritional information on the front of packages.
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This would mean that the front of a Wheaties box, for example, would display not only the smiling face of a famous athlete but also declare how many calories from fat are in each serving.
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“Busy shoppers will be able to go into grocery stores and have some easy to understand information on the front of packages giving them quick data on what is a healthier choice,” said Sebelius at the U.S. Capitol

Busy shoppers are so busy, they cannot be expected to turn the box around and look on the backside!

In a fortuitous coincidence, The Weekly Standard’s cover story this week is “Nudge Nudge, Wink Wink,” with a secondary headline, “Behavioral economics—the governing theory of Obama’s nanny state.” The article explores the Obama Administration’s desire to move away from cost-benefit analysis in regulation, an approach advocated in Cass Sunstein and Richard’s Thaler’s “Nudge.” In the magazine, Andrew Ferguson writes: 

Just as Obama is a liberal Democrat who, his admirers insist, isn’t really a liberal Democrat, behavioral economics proposes government regulation that, behavioral economists insist, isn’t really regulation. Under the influence of libertarian paternalism, regulators abandon their old roles as mini-commissars and become “choice architects,” arranging the everyday choices that members of the public face in such a way that they’ll naturally do the right thing—eat well, conserve energy, save more, drive safely, floss. In the literature the unavoidable example of this involves cafeteria food. Customers in line are more likely to choose food displayed at eye level; this concept, called “salience,” comes to us from behavioral science lab work. A wised-up cafeteria operator who wants his customers to eat healthier foods—at a high school, for example—will give prominent place to fresh fruits in the dessert line and push the Boston Cream Pie to the back. The kids won’t be forced to choose the fruit; the pie will still be there, if their pudgy little arms can reach it. 

Sunstein is now the head of President Obama’s Office of Information and Regulatory Affairs, the top regulatory review job in the Administration. Kathleen Sebelius, she’s head of the Department of Health and Human Services and its new Office of Salience Coordination.

More from CNSNews.com, and thanks to them for covering these issues, “Sebelius Says President Obama Has Instructed All Cabinet-Level Departments to Promote Public Health.”

The Patient Safety and Medical Liability Reform National Advisory Council (NAC) Subcommittee met yesterday in Washington, initiating the long, consultative process that will lead to demonstration projects that will allow Congress to exclude tort reform from any health care legislation because, hey, they’re working on it. Here’s the agenda and a fact sheet on the $25 million White House initiative.

Sherman “Tiger” Joyce, president of the American Tort Reform Association, submitted a written statement to the advisory panel subcommittee, accmpanied by an ATRA news release, “ATRA to HHS: Surest Road to ‘Patient Safety’ is Access to Top Medical Specialists, Drugs and Devices.” Excerpt:

Washington, DC, October 26, 2009 — As a Department of Health and Human Services panel today convened a hearing to begin discussions of medical liability reform demonstration projects, American Tort Reform Association president Tiger Joyce reminded policymakers that, “Without access to the best specialists and live-saving drugs and medical devices, much of the recent talk about medical errors and patient safety could quickly become academic.”

ATRA’s written testimony to HHS’s Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, which conducted today’s tightly controlled hearing here in Washington, “was the only means by which to express our views and it was quite limited in length,” Joyce noted. “An effective medical liability system should provide predictability and fairness, guided by the over-arching principle of equitably and promptly compensating those who are truly injured by medical negligence,” Joyce’s written statement began. “A balanced system also would help to promote access to health care, deter harmful practices, and reduce the cost of wasteful ‘defensive medicine.’ But in these areas, the current system comes up short.

If we tend to cynicism about the medical malpractice demonstration projects — and grants – it’s because President Obama has never asked that tort reform be included in reform legislation, and he’s ruled out caps on non-economic damages. In recent remarks to the National Association of Manufacturers, Health and Human Services Secretary Kathleen Sebelius did not mention the issue. And, as former Vermont Governor Dr. Howard Dean said, “The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.”

Take a look at the American Association of Justice’s lobbying in the 3rd Quarter on the issues of health care tort reform. They’re against it.

For all the skepticism this process warrents, comments by an experienced lawyer friend of ours remind us to keep paying attention. He notes that these demonstration projects need not necessarily be directed toward cost savings or the reduction of frivolous litigation. A group could apply for a grant and use the demonstration project to undermine court rulings or past reforms. So examine those grants carefully.

By the way, did anybody see any news coverage of yesterday’s meeting?

Funny to see the Post use the term “speed up” in its headline, when the strategy is clearly to kick the tort reform can down the road and into the ditch to be covered by the first snows of winter.

• Washington Post, “Obama to Speed Up Tort Reform Tests, but Doctors Want More“
• Chicago Tribune, “Medical malpractice reform: Barack Obama plan to reduce lawsuits earns few backers“
• Kansas City Star, “Sebelius, Obama tiptoe into tort reform“
• Point of Law, “White House announces med-mal demonstration grants“

President Obama today sent a memorandum to Secretary of Health and Human Services Kathleen Sebalius instructing HHS to develop demonstration projects on patient safety and medical liability.

• Presidential Memorandum
• FACT SHEET: Patient Safety and Medical Liability Reform Demonstration
• Secretary Sebelius comments at White House press briefing.

Philip K. Howard, legal reformer and author, in The Atlantic, “The Menu of Malpractice Reforms”

American Tort Reform Association news release, “White House Memo, Trial Lawyer Position on the Need for Tort Reform Share Similarities”

UPDATE (5:25 p.m.): The American Association for Justice continues its suddenly frenetic fundraising, asking its trial lawyer members via e-mail to help pay a new ad campaign.

The Washington Examiner, “Majority to Obama: Get serious on tort reform“:

Although most of his health care speech consisted of the same talking points he has been offering for months, President Obama last week offered up one surprise as he sought to make his increasingly unpopular health reform bill more palatable for the American public. “I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs,” Obama said. He added that he was authorizing Secretary of Health and Human Services Kathleen Sebelius to begin “demonstration projects” in various states to deal with malpractice reform.

HHS Secretary Sebelius, the Examiner notes, spent eight years as executive director of the Kansas Trial Lawyers Association.

In an interview, The Washington Post asked Secretary Sebelius about her role in promoting demonstration projects and other legal reforms. The Weekly Standard reports her response:

I think I’m just the person to do it because I think I understand the system of litigation very well. I understand that we want to, as the President has always said, compensate injured victims, but the defensive medicine is not helpful to the overall cost in the system. The best opportunity is to raise the quality of care and lower medical errors, so there are lots of strategies we can put in place.

Standard contributor Mary Katherine Ham comments: “Indeed, as I’ve consistently said, the fox is uniquely qualified to guard the henhouse, because he understands the delicious taste of poultry very well.”

The health care reform legislation released by Senate Finance Committee Chairman Max Baucus yesterday also mentions tort reform. In passing. As an idea worth considering. Eventually.

The Chairman’s Mark would express the Sense of the Senate that health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance. The Mark would further express the Sense of the Senate that states should be encouraged to develop and test alternatives to the current civil litigation system as a way of improving patient safety, reducing medical errors, encouraging the efficient resolution of disputes, increasing the availability of prompt and fair resolution of disputes, and improving access to liability insurance, while preserving an individual’s right to seek redress in court. The Mark would express the Sense of the Senate that Congress should consider establishing a state demonstration program to evaluate alternatives to the current civil litigation system.

The Wall Street Journal’s Kim Strassel is very, very tough on President Obama’s speech on health care Wednesday, finding within the tort reform rhetoric more status quo trial lawyer. From “The President’s Tort Two-Step“:

On Wednesday the president told Congress “I will not stand by while the special interests use the same old tactics to keep things exactly the way they are.” In fact, the administration is standing by to allow its most special, special interest to drive this debate. What the tort bar wants, the tort bar gets. Health insurers should be so lucky.

The legal question has become the starkest symbol of a broken health discussion, and offers insight into this presidency. For Republicans, legal reform has become a litmus test, proof that Democrats have no interest in a deal, and therefore a reason to step back. For many Americans, legal reform has become proof that President Obama is more interested in an ideological triumph than his stated goal of lowering health costs.

Another reason for skepticism? From The Heritage Foundation, “Obama Taps Ex-Trial Lawyer Lobbyist To Lead Tort Reform.” That would be Kathleen Sebelius, secretary of Health and Human Services, who used to be head of the Kansas Trial Lawyers Association.

From the Heritage Foundation’s Foundry blog, “Morning Bell: Public Option Is Not Dead Yet“:

The headlines are encouraging: The AP reports, “White House appears ready to drop ‘public option’.” Politico reads, “White House backs away from public health care option.” And the front page of USA Today says, “Obama may drop public option in health care.” These headers all stem from Health and Human Services Secretary Kathleen Sebelius’ comment on CNN Sunday Morning that the public option “is not the essential element” of President Barack Obama’s health care plan. But by Sunday night the White House was already walking back Sebelius’ statement.

An anonymous administration official told The Atlantic that Sebelius “misspoke” and White House health reform communications director Linda Douglass released a statement explaining: “Nothing has changed. The president has always said that what is essential is that health-insurance reform must lower costs, ensure that there are affordable options for all Americans and it must increase choice and competition in the health-insurance market. He believes the public option is the best way to achieve those goals.”

Our guess? Secretary Sebelius was just expressing the content of previously confidential discussions. If so, good.

Grace Marie Turner of the Galen Institute reviews the strengths, weaknesses, successes and failures of Kathleen Sebelius and Nancy-Ann DeParle as the leaders of the Obama Administration’s health care reform team — Sebelius at HHS and DeParle in the White House. As Kansas Governor, Sebelius had more policy and political failures than successes on the state health care front, Turner reports.