Tobacco Settlement Perennially Validates the Wisdom of General Harshbarger

Friday, January 29, 2016

Back in the early-Nineties, 46 attorneys general brought a massive lawsuit against the largest U.S. tobacco companies to recover costs incurred by states in caring for persons afflicted with smoking-related illnesses over a period of many decades.  We the taxpayers are fortunate they did. 

Under the terms of the 1998 “Master Settlement Agreement” of that suit, the states collectively have since received in excess of two hundred billion dollars: $200,000,000,000!
That money continues to flow at astonishing levels:  during the current fiscal year, the states will derive approximately $7 billion from the settlement.  Massachusetts alone will get over $200 million. 

What continues to astonish, as well, is the harm caused by tobacco: smoking will kill more than 480,000 Americans and smoking-related illnesses will necessitate health care spending of approximately $170 billion this year.  
In Massachusetts, 16.6% of adults still indulge in the nicotine habit.  That number ties us with New York as the states with the 11th lowest smoking rate in the U.S.  Utah has the lowest rate, 10.3%, and Kentucky the highest, 26.5%

Here’s something we chin-rubbers of the political persuasion seldom consider: the debt all Massachusetts taxpayers owe to Scott Harshbarger, our attorney general from 1991 through 1998.
Harshbarger was in the coterie of attorneys general who conceived of and organized the suit versus the tobacco companies and helped to turn the case into a juggernaut by bringing so many other AGs on board.    

As discussed in a previous post, we at Preti Strategies once had a client, Dr. Robert Berger, who wanted to use a relatively small portion of the state’s tobacco settlement dollars, one time only, on a clinical trial of the effectiveness of lung volume reduction surgery.  See:

That proposal failed due mainly to the opposition of those wanting to spend the lion’s share of those dollars on smoking prevention and cessation programs.  We had no choice but to drop the idea and move on.  
The overall debate on how best to use the settlement in Massachusetts, however, has never ended.

One on side have been the governor and a majority of legislators, who each year have favored putting most of the money in the state’s general fund, where it can help defray the enormous and ever-growing costs of running the Medicaid program. 
On the other side have been the Centers for Disease Control (CDC), the Tobacco Free Kids organization, and an assortment of well-grounded, passionate health advocacy groups, who want tens of millions taken from the settlement every year and spent directly on smoking prevention and cessation.

The CDC says Massachusetts should be spending roughly $67 million a year on prevention/cessation.  Advocates use the CDC number as a rallying point every budget season (February through June) on Beacon Hill.
In the current state budget, $3.9 million is set aside for prevention/cessation, only 5.8% of what the CDC says is required to protect the citizens of Massachusetts, especially children, from cigarettes and other tobacco products.

Over the years, Massachusetts has spent as much as $50 million on prevention/cessation (FY 2001) and as little as $2.5 million (FY 2004).
When Governor Charlie Baker filed his proposed FY 17 state budget this week, he level funded prevention/cessation at $3,866,096.  Neither the House nor the Senate, I predict, will change that figure much when they take their turns at bat in the budget formation contest.

Here’s a concluding bit of relevant data:  in Gov. Baker’s FY 17 budget, total spending on MassHealth, the name we give to Medicaid hereabouts, is pegged at $15.4 billion, which is nearly 40% --and by far the largest single spending category -- of his $39.6 billion budget



It Proved Impossible to Do What the Doctor Ordered...and that Still Hurts

Tuesday, January 19, 2016

I can remember the morning but not the year – it was around 1999 or 2000 -- when my boss, Al Minahan, and I drove from downtown to Brookline to meet a prospective client.  We had an appointment with a recently retired surgeon at his home. 

His house was on a quiet side street just beyond the Brookline Reservoir, to the left of Boylston Street (Route 9) as you’re leaving the city, and up a hill. The neighborhood had been built on or near what had once been the Lowell Estate. 
Dr. Robert Berger answered the bell and ushered us in. 

He seemed a little hesitant or distracted.  Maybe he didn’t like the look of us, I thought, or was having second thoughts about hiring a lobbyist.  We’d been referred to Dr. Berger by a friend and fellow lobbyist, a gentleman who could not accept Dr. Berger’s assignment because the goal conflicted with the interests of an existing client.

The three of us were soon in Dr. Berger’s first-floor den, where the doctor began searching the shelves and a closet for a videocassette.  The subject of the video was lung volume reduction surgery (LVRS), an option used by some surgeons to treat patients with chronic obstructive lung disease, many of whom have advanced emphysema caused by years of smoking.  In LVRS, a surgeon removes the most diseased parts of a patient’s lungs in order to give the less-diseased parts more room to work in.  Post-surgery, the patient is supposed to have less shortness of breath, more comfort, less pain.
Dr. Berger was going to decide if we were the ones who could help him secure state-controlled funds for a randomized clinical trial on the effectiveness and optimal application of LVRS.  The project was formally known as the Overholt Blue Cross Emphysema Surgery Trial, OBEST for short.  It had been designed to yield useful results in as little as six months. 

Dr. Berger was the OBEST project director when he came up with the idea of funding OBEST via a one-time allotment from the continuous, multi-million-dollar revenue stream flowing to Massachusetts under the 1998 Master Settlement Agreement of the lawsuit against the major U.S. tobacco companies by Massachusetts and 45 other states.  He believed that somewhere between two and three million dollars could do the job. [NOTE: Here's an example of how much money still comes to Massachusetts through this agreement: In 2014 alone, the Commonwealth received $282 million from the tobacco companies.]
We watched the video, which lasted maybe 10 or 12 minutes.  Dr. Berger asked some questions and so did we.  We chatted about our work, our contacts on Beacon Hill and our normal fees. Then we parted company without coming to an agreement on his hiring us, although it seemed he was leaning in that direction.

In a previous position, I had worked with physicians and surgeons for nearly 15 years.  I remember thinking that Dr. Berger lacked the hard edge and driven personality I’d come to associate with most doctors.  I wondered if what I perceived as hesitancy or tentativeness was not a sign of fatigue or even disillusionment.
Later, I realized how wrong I was.  I saw that Dr. Berger did not have to summon much energy or attention to take the measure of a person or situation.  He was kind of on cruise control the day we met.

Within a week, we were hired and began setting up a series of meetings with legislators and policy makers in the state health care bureaucracy.  We also arranged meetings with folks from the American Cancer Society and what was then the Coalition for a Healthy Future and has since become Tobacco Free Massachusetts.
Dr. Berger came to all of those meetings and never failed to make a good impression.  It turned out that he had ample reserves of charm and wit, which he could call upon at will.  Making the case for OBEST, he always got to the point and hammered it home passionately.  You never had to pull him back from a meandering digression.  He liked putting his charisma to the test.

As we made the rounds, and as we had coffee and lunches with him between appointments, some details of Dr. Berger’s highly unusual and remarkable life would come out. 
He had been born in Hungary in 1929.  When World War II began, his family was caught up in the Holocaust.  Barely in his teens, he had to flee to Budapest, where he lived in the shadows with other displaced and hunted Jewish boys.  One day, in a near-fatal encounter with a Nazi soldier, he was clubbed in the forehead with a rifle butt, but managed to run away.

Dr. Berger survived the war and lived afterwards in camps for displaced persons administered by the allied powers.  In 1947, he was resettled in New York City, and then in Boston, under the auspices of Jewish Family and Children’s Services (JFCS).
When he arrived in Boston, Dr. Berger spoke no English and had the equivalent of a seventh grade education.  Within a year, he had earned enough credits to graduate from Boston Latin, and had gained admission to Harvard College.  After Harvard, he attended and graduated from Boston University School of Medicine. He received training in internal medicine, general surgery and cardiothoracic surgery.

Dr. Berger became a surgeon and ascended rather swiftly to the top tier of the profession.  The positions he held included: director of cardiothoracic surgery at St. Elizabeth’s Hospital, chief of cardiothoracic surgery at Boston City and University Hospitals, and professor of surgery at Boston University School of Medicine.  The first surgical team to perform heart bypass surgery in Boston had Dr. Berger as its chief.
Dr. Berger was the kind of surgeon who’d be paged at Symphony Hall on a Friday night and be driven by police at breakneck speeds to City Hospital, where a gunshot victim, inches from death, badly needed his services.

Most of the above information was not conveyed to me by Dr. Berger but rather came to light through my own research.  I’d be intrigued by something he’d say in passing, like how he’d gone to Israel during the 1967 war to make his skills available to the wounded and would be willing to go back in the event of another war, where “I would treat anybody who was hurt, any Palestinian as well as any Israeli,” and I’d go back to the office and search the Internet for information on him and his accomplishments. Then I’d ask him questions later about what I’d learned.  He really did not like talking about himself; the good stuff I had to pull out of him.
Three or four months in, it was becoming apparent there was no appetite in Massachusetts for funding OBEST from the tobacco settlement.  No one liked the possible precedent it would set.  No matter who we met with, that person would basically tell us:

“These patients have been harmed by smoking and you make a good argument that tobacco company money should be used to help them, but where do you stop?  How do you refuse the next group that steps up and asks for money from this pool?  The Master Settlement Agreement is supposed to be reimbursing the state for the cost of caring for Medicaid patients harmed by smoking and paying for smoking prevention.  It makes no provisions for clinical trials, no matter how good they may be or how much they may be needed.”
Our interlocutors had a strong conviction that Massachusetts should use its Master Settlement Agreement money only for anti-smoking advertising campaigns and smoking cessation programs.

When a proposal fails to gain traction, when a cause that once gave you hope turns gloomy, it is hard to acknowledge that fact.  It’s hard to say you cannot win when you’ve been hired and paid to earn a victory.  It is especially hard when you’ve been hired by someone like Dr. Berger and you’ve come to realize he is one of the finest human beings you’ve ever met, and that the project in question could have been a fitting coda to a glorious career in medicine.   But acknowledge it you must, as soon as you see the outlines of a loss emerging.  You have to give clients the bad news as quickly as you give them the good.
During that last conversation with Dr. Berger, he was quite disappointed, and reluctant to accept that the mission was over.  He showed his disappointment the most, I think, in how he grew distant.  He was polite but the change in his voice, the perceptible cooling of his customary warmth, made it plain that he felt let down.

On Tuesday, January 5, I opened The Boston Globe  to find that Dr. Berger had died on New Year ’s Day of complications from a heart attack.  He was 86 years old.  The disappointment of the OBEST assignment sprang to mind but was quickly subsumed in the gratitude I felt, and will always feel, for having once known a man as strong, a healer as skilled, a humanitarian as large as Bob Berger. 

NEXT: A look at the Master Settlement Agreement, 18 years later, and how Massachusetts has utilized this multi-million-dollar, constantly replenished resource.