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An Interview with Sheila Burke

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Sheila Burke was chief of staff to former Senator Robert Dole (R-KS), the Republican leader during the Clinton health reform effort. The O’Neill Institute’s Lester Feder spoke with her about what makes this time around different.

Lester Feder: Compared to your experience in the ’90s, what do you make of the health reform process so far?

Sheila Burke: I think we’re further along than we were, absolutely. Only time will tell whether this president’s strategy to essentially stay out of the scrum was the right strategy, but it at least allowed Congress to begin to play through the things that it needed to deal with. They have lawmakers who have bought into certain positions, which was not the case last time around, and there’s ownership of the content.

With the ownership, however, comes the risk, which is that people get dug in on subject matter. The choice of the president not to clearly indicate his preferences has complicated things.

Lester Feder: Having watched the internal dynamics of the Republican caucus last time, what do you make of the dynamics there and how they’ve been operating this year?

Sheila Burke: One of the striking differences between then and now is the fact that there’s no middle in the Republican Party. You essentially have far more cohesiveness in terms of resistance. You have fewer instances where there are a group of members—there are the rare single members, Olympia Snowe is a good example—but you don’t have the same kind of power that the John Chafees, Dave Durenburgers, Jack Danforths had. Not having that kind of middle has left far greater authority in the hands of the leader because the leader essentially is reflecting his caucus and can speak for them.

Lester Feder: What do you think of the quality of the bill that seems to be emerging?

Sheila Burke: Well, I think there are elements that are important and will make a real difference. But the challenge you face is the fact that it’s trying to be all things to all people, so it’s begun to look cobbled together. The combining of the two drafts of the Senate bill resulted in a set of decisions that may not be entirely coherent as a matter of policy.

For example, the decision that the Finance Committee made to not do an employer mandate led to the scenario that allows for the employer to choose not to offer coverage, but begins to penalize the employer if they have one employee who’s taking the subsidy in the exchange. Well, the natural response to that might well be not to hire those people. Is that really the incentive you want to create?

The policy is to cover all people; the policy is to have shared responsibility. The politics is that the employer mandate was in trouble. The alternative they came up with may now in fact put low-income workers at risk, which is exactly the population that you want to help.

Lester Feder: What do you think are the most significant pieces of the legislation are?

Sheila Burke: There’s no question that people are generally in agreement with all the insurance reforms. They of course make the most sense in an environment where everybody’s in the pool so you have a broad sharing of responsibility. I think the subsidization of people and the moving towards equalizing Medicaid treatment across the country—so you don’t have these wild variations of who is and who is not eligible—those things make enormous sense. I think a lot of the suggested changes in the Medicare program to make it much smarter purchaser of services also make terrific sense: relooking at reimbursement, relooking at trying to create incentives for wise and efficient use of services, the bundling experiments, the movement towards case management. The attempt to try to close the doughnut hole makes a lot of sense.

The employer side stuff is kind of all over the place, and the question is where you come down: Do you think employers should be compelled to participate or ought not to be? But what you don’t want to do at the end of the day is harm the worker. You have to find a way to encourage participation, not drive people out of the system.

Lester Feder: Obviously, when the House and Senate bills are merged (assuming the Senate bill moves forward as it now stands), the public plan and abortion coverage will likely be big issues. But are there ground-level issues that are equally—if not more—important to the way people actually get care?

Sheila Burke: The answer to that is yes. I think that a lot of the insurance reforms are things that have yet to be worked out, whether they can sell across state line, whether they are held to minimum benefit standards, whether they are held to state standards or a new standard. I think a lot of those things could have real impact.

I think we don’t really understand what some of the tax provisions will do. What happens if you begin to tax high-cost plans? Will people begin to buy different and more cost-efficient plans, or is it they just pass on the costs to everybody in the system thereby making the insurance more expensive? I think there are questions about whether the system as we know it can tolerate an influx of a huge number of people. Have we done enough on the manpower side to allow for that kind of a transition? One of the Massachusetts problems is putting everybody into the system but not having adequate resources to care for them.

There’s also a huge disconnect—which people kind of keep ignoring—between the House and the Senate in the creation and operation of the exchanges. The House is far more federally dependent, and the Senate clearly goes more in the directions of the states. One of the great unknowns will be what happens in terms of the state ownership.

We’re putting tremendous burdens on the states in terms of the programs and their costs. There’s also this fundamental underlying question, are things best done on a national level where there’s equality across the line, or are things best done at a state level where you see more innovation. No one’s really begun to press on that question yet.

Lester Feder: I’m guessing that you have an opinion on that?

Sheila Burke: I must say that I’m mixed. I listen to people like Alan Weill—who I have enormous respect for—who really believes there’s a lot to be learned from the states and the ability of the states to be more flexible and responsible. But that begs the question, what happens in a state that isn’t responsive and that isn’t so organized? In the absence of the Feds trying to set at least de minimis rules, then you run into this problem of variation depending on where you live. But I also think an acknowledgement of the pressure that’s going to be put on the states financially has got to be made.

Lester Feder: What do you think the big questions before the legal community will be assuming health reform goes through?

Sheila Burke: There will be continued debate over the mandate—what can you compel people to do, and how you require employers to do that kind of thing. There will be questions on confidentiality and discrimination. I think how you define the benefit structure, whether that is equitable, whether you have discrimination in the way it’s designed. I think there are a lot of interesting questions.

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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