governors talk about education and cybersecurity as they gather for the annual winter meeting of the national governors' association. we have live coverage throughout the weekend on c-span. >> live again on c-span2 with a discussion of afghanistan's national security forces. defense and interior ministers will talk about their insights into the future of afghan security. live coverage at noon eastern on c-span2. >> this weekend on booktv on c-span2 michael shall there, former chief of the cia osama bin laden unit on the continuing war against the u.s..

the new york times liberal agenda has tarnished its reputation as a trusted news source. on afterwards, susan jacoby explore the health industry and american culture in never say die. look for the complete schedule at booktv.org and his get our e-mail signup for our booktv alert. sunday on road to the white house former arkansas governor and presidential candidate mike huckabee on a simple government sharing his thoughts on president obama, social issues and his possible run for the 2012 election. watch road to the white house sunday at 6:30, and 9:terry eastern and pacific. the data discussion about the future of health care featuring

the head of hospital and medicare and medicaid officials. this is about 90 minutes. [no audio] >> thank you for sponsoring this. extend a warm welcome. john act as the insurance company's managed care for

organization for hospitals and government organizations and we are delighted. he has [applause] >> on behalf of sanders, we are very proud and to be a sponsor. we are large law firm. we have 37 offices in 17 countries across the globe so when we first heard about the global business forum. it was real natural for the reach of our firm and what we aspire to to match with the strength of the university of miami. two of our strongest offices, in miami and west palm beach. our health care and health care finance practice are among the strongest in our firm providing innovative and value driven

solutions for our clients. with that little commercial, and squire sanders out of the way let me get to the meat of the introductions. the objective of the panel today is to talk about patient centered care and accountable care. the perspective of the leaders who agreed to be here today to talk with all of us on this panel include viewpoint of physicians, hospital, medical center's, payers and the united states government and state government as well. they are really a great panel of people. dr. cosgrove will speak first. he is president and ceo of the cleveland clinic foundation. steve jones is president and ceo of robert johnson university hospital in new jersey. and john mcgulchy is head of

government practice. tony rogers is currently deputy administrator for strategic planning. with that said, i am going to introduce our panelists in reverse order. after i got done introducing kobe last he will speak first. that seems to make the most sense to do this. tony rogers has 30 years of experience in the health-care industry. march of last year he was appointed to his current position at cms. he is past printable at health management association of associates in michigan. he was past director of the arizona medicaid program and chip program providing health coverage for 1.3 million in arizona. that is having budgetary responsibility for over $11 billion organization in the state of arizona. john bigalke has acted as vice

chair of the national industry leader for health sciences and he joined lloyd over ten years ago after the advisory practice. he is one of the -- he provides service to many key players including what blue cross blue shield of michigan with universal american, with advisory services to many leading providers of. the perspective john bigalke will bring today focuses on the payer side of accountable care equation. steve jones from robert johnson hospitals has been working with robert johnson hospitals in a variety of roles since the 1980s. it is an academic medical center that includes children's hospital.

he is a board member of new jersey hospital association and veteran of united states air force where he specialized in russian linguistics. so hopefully with that background he will be able to help us, the acronym the accountable care relatively easy. dr. cosgrove is president of the cleveland clinic foundation. it is a six billion health care system and certainly one of the most well-known health care systems in the world. he emphasizeds patient care and under his leadership has reorganized the clinic model into a patient's centered industry model. a perfect person to talk about what we get across this afternoon. he joined the clinic in 1975. he lead the clinic's heart program on a ten years run as top-ranked in the u.s. according to u.s. news and world report.

he was an air force surgeon who served in vietnam as chief of the air force casualties staging flight. he has performed 20,000 surgeries' which is the number i have a hard time getting my head around. he holds 30 pets related to medical and clinical products. with that, we will get into our discussion. it is my pleasure to introduce to a because growth. [applause] toby cosgrove. >> i want to welcome you all and thank you for including me in this. i think this is an opportunity to have a great discussion. i thought i would start by telling you about our institution which is a little bit unique and how it is organized. first of all we are not a for

profit organization. we are the largest group practiced in the united states, almost 3,000 professionals. we have leadership and also all salaried. no financial incentives for the group. regarding productivity. we have an annual professional review which we take very seriously. last year we spend 8,000 man hours doing our professional review of our professional staff. there is no tenure. we all have 1-year contract. i had 34, 1-year contract and had my fingers crossed for 35. we have had a significant amount of growth. one of the interesting things was to see how much we grew in 2010 as physicians have been becoming increasingly interested in being part of the group practice. a number of employees has reached 40,000 and we were scattered across the large area. the organization of the group is

quite different than most. most hospitals are organized around professional groups. surgeons, medical doctors, pediatricians, etc.. we took a different view. rather than organizing our hospital around doctors we decided to organize around patients. a ravel novel idea for hospitals to be organized around a patients. so we put the professions together, medical and surgical. the idea was to organize around organ systems, disease systems as in cancer, they had a single leadership and common location for these physicians. take for example the heart and vascular institute which has cardiac surgeons and vascular surgeons and medicine. the neurological institute would have neurologists, neurosurgeons and psychiatrists in the same location. the location for the cardiovascular institute is in

the pavilion where there are labs, operating lives and secure units, outpatient facilities and hospital beds. we think coming together as a health care delivery system we need to have a patient in the right facility at the right time for the right care. therefore our facilities go for the entire range of care. we have partnered with minute clinic and have outpatient facilities where you can get immunizations or strep throat slobs. then we have family health centers, 17 scattered around cleveland for outpatient facilities, for your care of your children and adults. these are associated with community hospitals. there are a nine community hospitals around the main campus, which look after the common ailments of individuals and the main campus which has

become a very high-tech facility. 1200 beds and the highest hospital patient severity of any hospital in the country. that is because we no longer do obstetrics. we no longer do psychiatry. it is 4500 heart operations, neurosurgery, complicated orthopedics, et cetera. in florida we have the cleveland clinic which is known 170 doctors and growing rapidly. the same model is in cleveland and on the same plan. in las vegas we have the cleveland clinic center for brain health looking after degenerative neurological disease. this is not a crash of a 747. this is the building. in canada and toronto we have cleveland clinic health and wellness center.

in this building and in all the dobby we are currently building cleveland clinic of the dhabi which will be 360 bed facility essentially 2.5 million square feet. we are currently managing the medical city which is 750 beds so we will have 1100 beds within the next two years. this enterprise is held together by a electronic medical records which looks after six million patients in family health centers and community hospitals, the main center and they are tied together with electronic medical records. we have a nice shot out from the president which i am braun'sing this particular saying. the second thing that holds this together is the transportation system. transportation system includes land transportation with ambulances, three helicopters and fixed-wing aircraft which can pick a patients from

anywhere in the world and transport them to our facilities. this is part of getting the right location at the right time for the right care. hospital transfers last year, number 12,000, at about 1200 a month. it has done progressively up as we have added capabilities to move patients. we don't think all hospitals any longer can be all things to all people. it is important that we begin to centralized activities so patients have an adequate fall human or hospitals have an adequate for volume to develop quality which comes from heavy volume and secondly from having the efficiency that goes with that. so if you look at our health-care system, we have obstetrics previously in a number of places and have

concentrated and reduce the number of places where they did obstetric care. this is reduced still further because some hospitals only do 800 deliveries a year so we plan on continuing to consolidate. similarly we look at inpatient rehabilitation and consolidated that in three facilities. the cleveland clinic has four cornerstones. quality, innovation, team work and service. the quality aspect, everybody knows you as new and world report and we're delighted to be number 4 on that but we don't think that is the real measure of quality. it is more important to measure outcomes. these are our outcome books we publish every year. good, bad, in different. i asked each of the institutes to begin to measure what they consider quality outcomes. i frankly did not know what we could measure. pretty easy in cardiac surgery

to measure outcomes. either walk out or get carried out. it is not quite so obvious in dermatology. i asked the dermatologist to come up with their own metrics. i don't know if dermatology is freckles per square inch or whatever it is but we have asked the dermatologists to not just say i am a great dermatologist but deliver metrics that says this is our outcomes, this is what we do each year and put metrics to it. each year it has gotten more sophisticated. these are also published on our web site because we believe in transparency around the outcome that is very important. as far as innovation we think this is one of the thing that is baked into our legacy from our model of delivery straight through research activity, continue to increase with 2,000 projects. the number of publications coming out of our lerner

research institute is 1200 year. the number of patents both filed and granted is shown here and as a result, 36 spinoff companies over the last ten years. team work is another of our fundamental cornerstones. medicine is no longer individual sport. this individual is now relegated to a historic character and teams have grown. principally they have grown because the amount of knowledge doubles every two years. no longer is one individual able to surround the amount of knowledge you need. you need teams. this is the team in the cardiovascular surgery. it has grown enormously from the initial six individuals who formed the teams in the early 50s. and they have gotten more sophisticated. the first full face transplant was done a year ago and this is the team that was involved.

each of those represented a different specialty. it went from psychiatry through plastic surgery, dentistry, anesthesia, etc.. it has become -- the teams have become more sophisticated and larger. service is one of the things we think is a cornerstone for us and what we and the hospital business are all about. our most recent innovation was we said patients should be seen when they want to be seen. ceo every patient who calls is offered a same day appointment. last year 25% of our patients were seen as same day appointments. we also know think the experience is something more than a clinical outcome. we pointed two individuals to be the chief experienced officers. one, a colorectal surgeon and one the head nurse. we start by greeting patients at

the door. gentlemen or ladies in red coats to help them find their way through our organization. we have parked on the walls that acts as a locator and also allows you to break up the monotony of the facility. we designed our rooms specifically with large amounts of glass which pulls out into the sleeping arrangements of families can spend the night. we think dignity is important. we partnered with a designer go on that does not leave your cheeks flapping in the breeze as you walk along. [applause] thank god i have a wife that directly in the right direction. you can't tell players without a

scorecard. so we have color-coded all the people who work in a hospital. the patient has given this card so someone walks in you know there is a clinical technician or pastoral care or a resident, white coat with blue lettering and so the patient knows who is coming into the room and why they are there. patient visiting hours are a thing of the past. you can coming to the hospital any time and stay as long as you want because it is no longer about taking care of the patient. it is about taking care of the family. we have open medical records. no longer the doctor's record but your record and you should have access whenever you want so you have it electronically or in paper form any time you would like to see this. therapy is available on the floor is. there is pet therapy that comes into the hospital and nothing better than the electrical lab. spiritual care is important. these are the premier rooms in our facilities.

we have also -- it is important for our patients and employees that we begin to address the major causes of premature death in the united states which are three accounting for 40%. obesity bleaker turtle sedentary lifestyle and smoking. we started out by making the campus smoke-free. did not hire smokers. we give them a smoking cessation opportunity and a reply to the job. this applies to doctors and all the other caregivers. this resulted in amazing smoking cessation in cuyahoga county. these are incidents in ohio and the united states. incidents of smoking five years ago was 28%. it has gone down to 15% in cuyahoga county.

you can make a difference with public health activity. we pay attention to the food we serve our employees and patients. we took trans facts out of all our food and pop out of the vending machines and given a major wheat reduction program for all of our employees including frites weight watchers, free curves and yoga and so far we have lost 188,000 pounds. [applause] i would like to say it is the start. we have two million more to go. a journey of 1,000 miles starts with a single step. we believe we are in the service business. it is about putting patients first. we have done everything we can to organize our health care delivery system to put patients at the center of our activities. thank you very much for the opportunity.

[applause] >> thank you. i appreciate the chance to participate in this discussion about the health care transformation and development of a ceos or that transformation from the perspective of the academic medical center. let me see if i can advance this. >> there you go. >> there we are. robert johnson university hospital is a voluntary not for profit hospital in new brunswick, new jersey. we are the principal teaching hospital for robert johnson medical school that is part of you and the n j. one of our state medical schools. we are the principal teaching community for rutgers university college of nursing and college of pharmacy and that -- as john said we are flagship of a four

hospital system in new jersey. i have responsibility for two community hospital and a pediatric rehabilitation hospital. the centers of excellence on our campus are mainly cardiovascular. robert wood johnson medical school has a cardiovascular institute. we do nearly as many cardiac interventions as cleveland clinic not near the open hearts injury the clinic does that we are proud of what they do for the country. on campus is the cancer institute of new jersey which is new jersey's only nci designated comprehensive cancer center and we have a cancer hospital adjacent connected by a skybridge. we have the bristol-myers squibb children's hospital with acute-care hospital on our campus and one of system members is children specialized hospital. is the nation's leading provider of children specialty services, pediatric rehabilitation and level one trauma center in new jersey. we are located about halfway

between new york and philadelphia. new brunswick is the home of rutgers people and our state university and world headquarters of johnson and johnson. those old enough to remember saturday night live, if you travel on the turnpike, we are also co-owners of a provider sponsored managed care organization. i believe that will pay value in the development of accountable care organizations. the role of an academic medical center as you know is unique with patient care, education, discovery and community outreach. the challenge is balancing the academic mission in a low-cost environment and it is clearly where we are going in providing value. two months ago darrel kurtz an annual meeting of the a amc talked about the leadership role of academic medical centers and said that it was very important that using strengths of the

academic medical center in health care delivery science that they need to be engaged in the transformation needed to improve the health of all. there are a challenges to the development of an aco while we await regulation to understand more precisely what the requirements are but we know there are a challenges the infrastructure needs, the i.t. need. and the same critical liquidation platform. there's a lot more to do to be fully integrated and be able to have the patient information move among hospitals and ambulatory care facilities. access to be large enough supply of primary care providers. you read about experience in massachusetts when they went through a transformation and the need they had for primary care providers. we believe we are uniquely

situated with robert wood johnson medical school and their network of private doctors who have been doing research in education for 20 years in ambulatory care. that gives us a leg up in developing the network of physicians that will be required. and comprehensive case management is lacking, most academic medical centers have not assumed responsibility for population help in their state and there will be fundamental changes in the revenue stream as value is encouraged, quality, not the cost. physician alignment, networking and integration will be more critical. they are challenging for 4,000 community hospitals, very challenging and academic medical center with the roles and responsibilities of department shares and the need to align with physicians broadly in our community. leadership is critical as we

move toward developing an aco and physician alignment will be critical. are we mix those with academic medical center and its traditional roles and responsibilities with the changes we know are needed to engage the outstanding physicians in our community. in new jersey's experience five health systems have major teaching hospitals as their flag ship. robert wood johnson is the only academic medical center with a medical school on its campus and medical school foundation for hospital system. each of those health systems are working to be aco ready. happens that we are all co-owners of the provider sponsor managed care organizations a we are working individually and as a group for one that managed care company could do particularly in information management. physician groups in new jersey are mainly fragmented. for estate was 8.5 million

population you see the most dense in the united states, there are lots of 1s and 2s and very few large multi specialty groups. our faculty practice is among the largest. the insurers are positioning themselves to develop acos some in concert with hospitals and others working directly with physicians and as a strategy will block hospitals out of the leadership in an aco and hospital services our commodity they plan -- the robert wood johnson strategy for development of the acos, we want to leverage the existing strong relationships with medical school and its 600 member medical group and the great private physicians that are broadly in our community as an academic medical center we get patients from 21 counties in new jersey but a six county area between 1 to three million population is the primary

service area. we are enhancing physician alignment strategies. i will tell you about that and we are developing an accountable care organization we call robert wood johnson partners. it will feature patient centered medical home, local accountability, standardized performance measures and we already have for transparency. and the department of health is releasing performance indicators tomorrow to the public. we receive an embargo on that's a lie don't know what that says today but we believe in transparency and the force is payment reform. ..

>> there are other large employers. we voiced our those discussions both with merck with johnson & johnson, new jersey's home to lots of our country's pharmaceutical countries, and large educational institutions, about 20,000 employees. so there are opportunities there. in our state, medicaid wants to transfer or transform its population, which is just about a million, a little over a million, two and accountable care organization. we are talking at least in two towns in trenton, our state

capital, and new brunswick there ever has been one of five systems that manage all of the medicaid population in an aco. there is a strong business case for health care reform. there is a strong business case for transformation. and i believe there's a strong business case for academic medical centers to be involved in the development of accountable care organizations. the first business case is value. increasing quality, and managing that cost. the second business case is the economic engine. you know that hospitals are a powerful economic engine in our state, and in many communities. but more important than that, the economic engine is our responsibility to the small businesses, and midsized businesses large businesses in our state that, in order to build all of our states economies, the more we can do to help manage down health care

costs, the better. there is data, literature about reduction of lost workdays from those organizations like the clinic that had planned, that have managed these populations. and third we believe the academic medical center incorporating discovery and education of the next generation of professionals in what the best practices are. the need for transportation -- transformation is crystal clear. we are awaiting the regulation and political change that might come in washington, whatever that is. but the pressure to increase the value will not change. will not change. and remember in 1993, the clinton health plan? i do because in october 1993 president clinton came to robert wood johnson university hospital in new brunswick, new jersey. we were the first hospital he visited outside the beltway to talk about health care reform. now what happens when the clinton health plan did not advance?

to change stop? absolutely not. employers drove change. it is very clear now that we need health care reform. there is a business case for health care transformation. academic medical centers, academic medical centers must help lead that change. i thank you very much for the chance to put his -- participated and i look forward for questions during the panel discussion. [applause] >> i'm glad to be here this afternoon. it's very rare that university of miami lets eclipse and graduate have an opportunity to speak at a podium. i didn't mention it until i can do they didn't change the program on me. you know, there's a couple of points i would like to make you. first of all in my job i work with a lot of providers. and i've heard what each has to say about the redeem in less

than redeeming qualities of the other. but one reality is that that's going to have to change. acos that we're talking about generally today is the tip of the iceberg. it is a first step to try and do some of the things that are described. when you look at the word population, you know, steve you actually allude to we you about dedicate. you start with medicare, medicaid and follows. well, what about large employer self-employed? what about geographies? what about even sweeping in things like work with scott and other areas? so when you look at it you have to realize, it's much bigger than a set of regulations on payment for a defined medicare population. in my view, at some point in the future this is how we are going to have to manage the costs in order to bend the curve, as the

president and so many of us would like to see us do. so i start with that, ask you to step back and think of just differently, and i'm not talking a rationing. i'm talking about caring for a population before they become a patient. helping them never have to see inside of a patient room. and creating the incentives for all the participants in the system to behave in a way that creates that kind of environment. that's going to require a very, very different business model, i would argue. i put out here just some of the attributes, you can argue whether you think health plans are really good at these things are not, but i would suggest that you think about their view of that consumer future versus what we might start out today, a holistic view of a eustachian year. i probably should not. i should probably use consumer. thinking about that individual,

not just when they're in the midst of a treatment protocol, or in the process of receiving free or postoperative care, or other things like that. but maybe even early on in the stage. i'd love to see some of thanks toby was talk about doing any organizations done in the committee. smoking cessation, weight management, those sorts of things. there's so many stories. i was at a meeting in chicago and newt gingrich on tom daschle were both there. it was really fascinating. but gingrich told a story of trying to manage down the cost of health care in a county in a rural southern state, talking about the social conflict between recognition of a young adolescent headed for severe obesity in the clinical consequences of that being unwilling to intervene there to change their behavior that individual, but then complaining about after some years of allowing their behavior to go on, having to pay.

so i set this up. how do we begin to think in accountable care about a holistic view around individual? how do we create technology and support systems that cross over all of the aspects of care from prevention to rehabilitation? how do we really figure out how to measure risk and reward the right behavior to the right people at the right time? the incentives just aren't there today. i believe at some point we'll go from cost-sharing to accountable care, more of a risk model because i think that's when we really ultimately start getting a best behavior out of the system. when all of the participants in the system work. but you have to understand how to evaluate, measure that risk, if you define populations the way i started. and then care management support, you know, i think hospitals are doing, those at

the end of the spectrum, the upper end of the spectrum are doing a terrific job developing patient centric organizations like steve and toby are talking about. but there's a vast majority that are not there and are not on that journey. i would argue these are areas where health plans can be helpful. i would like to shoot for the operating. if you look at what it's going to take to do the things i'm describing, you're going to have to a different leadership. providers have a real challenge, and i think there are exceptio exceptions, granted kobe, of collaboration but the incentives for doctors if you look at their age, my specialty, the incentives are very difficult to influence behavior given the incentives we have. it's going to take a different governance model to manage population health. clinical operations, you're going to have to have the kind of information that helps you

cross your population, use evidence-based guidelines that you can actually coordinate care the way i have described earlier. when you move to business operations, how are you going to divide the pie? are you going to share information? how are you going to do the things contracting with nonparticipating providers in your system, how are you going to manage the cost structure? infrastructure and i.t., data analytics, being able to take data out of a whole population and aggregate it to make intelligent real-time decisions with real management decision-making dashboards on how to care, how to care for patients, and how to use that data to do clinical reengineering to make those populations healthier. network and physician alignment, steve come you mentioned the talents is -- the challenges. if you talk to people who are doing very good things today in the provider wrote about physician alignment i think you'll get lots of different definitions. and i think that's a different

word and it's going to have to achieve a level of sophistication that we are not at universally today within these new organizations and financed the risk. access to capital is harder and harder, particularly not for profits as we all know. or the access to capital, health plans can help with. and a whole host of skills for an actuary and risk management technology capabilities that they have. and i just listed here just briefly taking that down just to the competencies, and what i would challenge, and i think most health clinics i talk to are very open-minded about collaboration. it could be particular product in this list like i.t. services. it could be a full iso type arrangement. it could be risk-sharing in a lot of different ways. i think you will find the health plans are very interested in having open discussions about how they can collaborate with provided in this country. because they see the future just

like you do. they see the challenges that are out there, the pressure they're under, ratios and all those sorts of things and they know it will ship. and i think you'll find a high level of interest. so my suggestion would simply be that you do an honest inventory, the capabilities other organizations, they got a couple generations just be on the regulatory requirements you may see and see what kind of accountable care organization should be, look at where gaps are think of innovative and creative ways of obtaining those resources versus feeling the need to buy or build it yourself. so those are just kind of overview. we can get into mortgage are those sorts of things but i thought i would leave that for now and we can go back into it at q&a. so without i will turn it over. [applause] >> well, thank you for inviting here to miami, getting out of

d.c. where it's about 38 degrees. into the sun is really great. i thought it would be helpful as the deputy administrator for strategic planning to give you kind of our strategic view of what cms is going to be driving the delivery system to do. and why what our rationale is. simply stated, cms has three aims. one, better care for individuals through seamless coordinated health care. two, reducing costs to continuous improvement. and better population health. now, many other speakers have already talked about their success in achieving many of these goals so we know the delivery system can achieve these goals. but as was pointed out, we see significant variance. so what is causing this various? quite frankly, the way that we have reimbursed the system, the

way that cms has acted towards its delivery system has created a culture in the delivery system that is actually at counter opposition to what we are trying to accomplish. instead, we have created a fragmented system instead of a cohesive integrated system. so we take that responsibility and we are realigning how cms will operate in the future. we can't ask the system to transform if we don't transform the way we do business. so as we look at our priorities we realize that excellence in operations that cms is how we relate to the system in the future, how we assure our organization climate with organizations that are organically aligned to helping us achieve our results, that the risk reward should go to those organizations that are able to achieve those three aims, better health care for individuals, reduction to improvement and population health. that our patient delivery system

integrator efforts and our team and health efforts have to be integrated with other agencies that are also focused on these particular areas as well as our state partners and medicaid as was our community partners. so within the business environment of cms, one of my roles is to reorient the business environment towards this new transform delivery system that we expect in terms of how we do policy. we don't want to do prescriptive policy. we would rather do descriptive policy. that says this is what we want to accomplish and allow the delivery system to innovate around that. we want to be able to really expose the performance of the delivery system, and we look for opportunities to reduce variance. and then, of course, public information giving the public, given our consumers, our beneficiaries more information about where, how the delivery system works for them, the value. and then finally innovation, creating a portfolio of innovation that will invest in delivery system innovation, in

the future. so if you want to boil it down, we see the delivery system currently produces a significant amount of unjustified variances and patient safety, health care costs and quality outcomes. we look at these next slide. you can see where that there is is. the reason i bring these slides is i want to tell you that we are beginning to see into the system where that significant variance in terms of per capita cost, and in quality is. so over time we are going to be tracking this and then driving this communication into the delivery system. these are some of the variances from the top level of where we see significant cost versus the national average versus the best practices that we see. if we look at it we can look at the difference areas where it's miami or louisiana or texas. versus other areas that have significant, better per capita

cost, and quality ratios. there is a relationship between the cost and the quality that we see in the system. this is another way to display it. you look at all to read, this is our data sheet that begins to break down where are we seeing best practices. and so our goal is to work with the delivery system, not regulate the delivery system, to move it from being read to move it to being green. so that we can move best practices and diffuse best practices more quickly. so, it's our goal, and this is where all of our strategic effort and focus isn't that there will be measurable improvement in care, and it will be felt by our beneficiaries, your patients. that will reduce costs because the system will be aligned to continually improve, and that population health and committee health will be part of what the delivery system is concerned about. because we believe there will be a longitudinal relationship with

beneficiaries that you won't see him moving out of eligibility or breaking services at the transform system is going to allow a smooth floor of transition between commercial health coverage to medicaid, and eventually into medicare. and that our goal is to great aligned incentives that make the system or organically aligned to what we are trying to accomplish. if we look at this as an evolutionary process we know that our current delivery system can very episodic non-integrated. and we have to move from that and this is because the way that we have created the financial incentives. the system does what it is made to do. and right now it is made to initiate transactions and not coordinate care because there's no consequences for not coordinating care. we want to move to accountable care. but out there is this integrated health system vision that we have. that is patient-centered that uses the technologies to create

greater engagement between patient and physicians and other health care team, that is aligned around while this for the patient because he sees the patient longitudinally, that has allied reimbursement strategies that reward the race for innovation. and that is the health capable. so that is the basic molecule of a patient-centered system. and inform inactivated patient, a productive exchange with prepared clinical team. and to do that we have to provide tools for the patient, tools with a beneficiary, that help them raise their health literacy and more actively engage in their health care management. and have greater self-management. we have to have clinical teams that have electronic health records and are willing to exchange the information so they have a full view of that patients can pick and that there has to be a common place where the patient and physician have a common set of information that they are both on.

to do this, transform system we believe we have to bring the pressure of several parts, several strategies. one is the electronic health records and what we're doing and investing and physicians use, service, delivery, redesigned investments for innovation scissor is will be investing in helping the delivery system redesign itself. quality and cost reporting transparency to give more transparency to what quality and cost transparently we see. and then our payment reform. so payment reform means going from a fee for service transactional basis system to more shared savings episode of care payments, bundled payments, value-based payment, partial capitation to allow the system to invest in what it knows will work. and integrated delivery system that has accountable care and

medical homes integrated with a common organically aligned goal of keeping the patient -- the page since journey to achieve the highest valued result for that patient because of the expectation that that patient will be engaged in that system over time. these are 2011 management focus. first is the division of acos. we will be coming out with regulations in the near future. will also be investing there are innovation center the diffusion of medical helms as the foundational organizational delivery system model that we will build innovation on. we cannot do it on a fragmented system. we have to have a capital care organizations in which innovation will be invested in. our specific focus in 2011 will be to reduce admission rates, reduced hospital required conditions, to improve care transitions between the

different levels of systems. as well as to begin to purchase services based on value which means quality and cost, would be two factors in which we purchase services we have always done that with dna. we both started into a live performance incentives. so it is a way to describe what and accountable care organization, this is what i would describe it is beneficiary patient focused their beneficiary because when the person is not a patient, they are still part of the thinking of the delivery system. they are thinking about the family, think about the social environment, thinking about the public health environment that that beneficiary is living in. and moving to address those upstream issues. when the beneficiary becomes a patient, that the system is very patient-centered, providing accountable and continuum care of improvement, transracial medical improvement that is focused on how to improve care and innovate around the patient

experience in the care of management. organized through managed care processes across the continuum of care aligned around performance outcomes, effective use of health care information technology. we realize that unless we do something in a delivery system to create a capital care organizations we will failed in most cases to adopt electronic health records. the aco is a strategy to create a market, and the reason why physicians will want to accommodate electronic health records because they will realize a part of a accountable care organization, to be a medical home that they will need to know how to use that tool. and so if we're good at this our results will be improve care coordination, increase provision of evidence-based health care because we'll be sharing and learning from each other, patient activation, raising health literacy of our consumers, efficient delivery,

and elimination of waste and reduction of costs. and what's important about this, if we are successful, less of a regular environment healthier. of freeing up of these organically aligned systems to do what is best for the patient. so, it's going to be our goal do not dictate what the structure should be. we know there will be hospital organization acos with stuff as those independent provider networks connect together, physician practice acos they'll have staff models, and provider networks affiliated, or loosely affiliated acos that will have a number of providers, together loosely affiliated organizations, all centered around what we expect the aco to do. govern and lead, all the improvement, cost through continuous improvement and

population health. if we look at the medical home, we see a maturing process that is necessary. and aco is an important part of the stretch. we know we have to move the medical home from just being a primary care or even a specialist provider who the patient sees as their medical home but has basic electronic health information technology or basic ability to manage the individual patient to a medical home 2.0 which has advanced chronic disease management, patient information, clinical decision support tools, greater patient access and communication to electronic exchange the patient, connected it to the public health and surveillance system that has enhanced ability to do quality reporting on a two-way basis so it's not just one way, but there's a two-way quality reporting so we can provide information on opportunities to improve quality, to improve performance. to the medical 3.0 which is part

of our integrated delivery system, which is fully e-health capable, has advanced care management, has participate in the community translational research as part of a broader virtual community, is connected to community resources, social services resources, other resources electronically that has learning centers that patients can come and learn. it has a resource where they can go online to get dated materials that help them raise their health literacy. that has community surveillance, not just receiving public health notices but helps to be part of the communities health surveillance. and, finally, has integrated horizontally in are operable systems. and is able to do biometric monitoring of individuals who are in honing to many so that we can keep them from being institutionalized. this is our vision and where we are driving the system, and

where you will see our innovation investment. our three-part goals and our means to achieve this is the first, a transformation of cms to align to this includes our payment models, the service delivery contracting we do, our expectation, et cetera. the delivery system transformation that is going to align to this common goal. and then finally, not because it's low priority, but bringing the patient into the center of this effort. this is what we are going to be focused on as our strategic direction. and i hope that will have a good dialogue about what you think about where cms is trying to drive its system. thank you. [applause] >> thank you all. those were for really wonderful presentations, and i know we all

think this because. we wanted to get ourselves a sufficient amount of time so that we could take questions from the audience. and i hope that there are a number of questions that you folks will have. i think that you should be able to come to the microphone and ask your questions. i'm going to take pride of place though to take a question of the panelists first. one thing that i do want to emphasize to our panelists is i'm going to ask that they keep their responses short, if we can do it in a minute each by minute and a half each, i think that there's going to be a real interest and lots of questions. let's try and be really quick on the answers. so here's the first question to get us started. i recently came across a quote in a book that i read 25 years ago, and haven't read it since. just starting to reread it.

this is what the code is. we have a hard time seeing things as they are because we can never get what they were out of our heads. we don't see the problem that exists, but the shadow last on. so to my question, many commentators and many people that i talk with, my partners, my clients, are talking about and comparing this reform effort to reform effort of the '90s that steve alluded to. and specifically to the efforts of capitation and efforts of managed care that i believe that lunch i think he was very fair to say that the managed care organizations didn't manage care. so the question is, to the panelists, what's different this time? why is it going to work this time when it didn't work in the mid to late 90s? and that's the question. and i guess, i'm going to ask tony rogers to respond first on behalf of the government. and maybe we can just run down

the line very quickly. >> thank you. i was lucky enough to be part of that managed care backlash in the '90s, so i can only tell you real quickly, a conversation i had with a seal of a very large health plan. and i was saying how we have become adversaries to physicians and to people who provide the service. .. >> this is the problem. yes, we know you know what the problem is. what we have to provide you with is an environment where you can work out those problems and a

delivery system that's in line to help you in doing that. ask that's what i think is difference -- and that's what i think is different. >> i'll just give you a couple points. number one, the global economy today is not what it was back then. we're trying to compete globally, and there's pressure on the business environment. ceos in america outside the industry are very engaged in this dialogue today, and i believe that is part of it. and the third would be the level of sophistication of information that's available is starting to put evidence out there that is irrefutable that change has to happen. >> i would agree with those. if you remember in '83 when drgs went national, it was just hospitals, and the hope was that hospitals would work with medical staffs, and hospitals were expected in responding in '93 with managed care it was not hospitals and physicians. i think what's different now is we do have a vision for where

the health delivery system needs to go to serve the beneficiaries, to serve our citizens. the physicians being engaged is a critical part, and the decision support. we have different tools and techniques available to us today that we didn't have in '93 or in '83. so it's clear that transformation's coming. >> yeah. i would say that, i would agree with all of the things that have been said. i think there's one similarity that i'm very concerned about. we have talked about the health care delivery system, we have not talked about the recipients of health care. and the thing that is probably going to bankrupt the health care system in the unite right now is the end -- united states right now is the epidemic of beastie which now -- obesity which accounts for 10% of the health care costs in the united states and is projected to hit 20% shortly. both of the plans neglected the recipient of health care and to

bring them in with incentives that lead them in the same direction as the incentives that are now driving the providers. >> thank you all. let's start here, and i'd ask that you just identify yourself -- >> being in new orleans. physician in new orleans. a couple of questions. one is accountability was not included in any of those die grams, and i think that -- diagrams and i think that has to be built into the equation. as a practicing physician, you know, noncompliance can throw away all your accountability plans out the window. and so, you know, what is the government's or cms' opinion about that issue? the other issue is when i see america home model, you know, i can tell you our group is probably a 1.5, between 1.0 and 2.0. we already do a lot of i.t.

tracking for large geriatric population that we follow. however, we only compensated for seeing those patients on one isolated encounter, and nothing that happens in between doesn't count or is currently being compensated. and so is cms in their interest in promoting this new way of doing business also keeping up with upgrading their method of paying physicians for services that are occurring in between the visits? because this is what we're talking about is shifting away from the patient encounter to a management process that is going to happen over the phone interacting through the internet and where are we in coding for that? >> tony, i think you ought to take that one. [laughter] >> cms in there two or three times, tony. that's all yours. >> your first question was about

how do you get compliance, and i think you have to -- there are two ways to get -- >> accountability to the population. >> in terms of accountability of the patient and to the physician to the patient i think you have to create a different relationship that is where the patient has chosen the delivery system and the physician, we have to then honor that choice by helping that physician become the medical home for the patient. and that means paying care management fees. we've already begun rolling out some initiatives in that so that between the visits the physician has the responsibility or the medical home has the responsibility to provide the care management. what we have found is that when the physician's not involved in the care management, care management is suboptimized. physician, nurse practitioner, medical team need to be part of

the care management process with the patient, they need to engage with the patient, they need to have the financing to do so. and that is one of the changes you will see coming out of cms in terms of compensating providers who choose to be medical homes to patients. in terms of the patient's compliance, this is always a struggle, so we're looking at beneficiary incentive programs, we're looking at how -- our hope is that the medical home environment will enbeige the patient -- engage the patient, align around the patient's issues, around their barriers. not around kind of a standardized view of all patients, but every patient has a story, every patient has a journey. so we want to give the providers, the acos flexibility to manage that journey to the benefit of the patient. that's going to require electronic health information. and for the physician to be able to see or the aco to be able to

see where that patient's getting care or not, we're going to be providing those organizations with the information that cms has. and this is the first time that we are going to electronically share information with organizations that have come together to say i will help to manage care for this patient and this population, so those organizations will get information. >> great. go ahead. >> question for probably mr. rogers, i'm dr. steve oman, i'm a professor here at um. with the growth of ac os or the potential growth, do the laws actually lag behind the ability to create ac os specifically s.t.a.r.t., antitrust, kickback laws, and then on the pullback on that if, indeed, antitrust laws are rescinded or cut back in terms of their utilization, does that cause the potential for additional market power in the system? >> good question.

i can't talk about the specifics, i can only tell you what we've been doing. we've been working with the doj and with the ftc about s.t.a.r.t. and the anticompetitive safe harbors that are going to be necessary. and under what conditions and what parameters that needs to be set. the goal is that as much as possible there should be competition. there shouldn't be a single source of accountable care in the community. to do that, the doj and the ftc are looking for how aco form and will be evaluating them as they submit their applications based on the potential for anticompetitive behavior. so we are working with them. the good part is there'll be opportunities for the community to comment. because we're working with doj

and the federal trade commission in a very collaborative way and with the internal revenue service, etc., it's going to make it easier for us to communicate when there is issues that we need to reconcile. but the interesting thing is the commitment of those organizations to making this work, the recognition that this is necessary, and they're not fighting it. they just want to make it work for everybody. >> what i would say, also, from the legal standpoint is that the creation of an accountable care organization should not in and of itself give rise to a competitive issue, an impact on competition itself. in other words, an accountable care organization does not have to lead to the kind of centralization or monopolistic behavior that, you know, some are worried about. and i think if it does lead that way, i can't imagine that the department of justice and the

federal trade commission would prosecute those cases vigorously. i'm from ohio, and up in toledo the federal trade commission and the ohio attorney general are looking very closely at a hospital merger right now. so these folks are going to look at these issues, and we have to be very aware of these issues. but the fact of the vertical integration, i think, that we're looking at here should not necessarily in and of itself raise that specter. i also would make the point that at the open door forum that cms and the doj held in october there was quite a bit of discussion about whether there would be an antitrust safe harbor put in place, and there was a lot of discussion by folks from the government and others that the principles of clinical integration that the federal trade commission has put forth in a number of business advisory letters probably make a pretty

good starting point for antitrust compliance with the accountable care organizations so that if you look at what the ftc has put out since 2002 with their first business advisory letter on ci, on clinical integration, there really is quite a bit out there on it. with regard to stark and anti-kickback, remember that at least for the aco demonstration the secretary of health and human services has the ability to waive some of the application of those laws and regulations if she deems it appropriate to do so. and that's going to be something that we'll find out how that all works out from the government in this future months. in future months. go ahead. >> hi. judy scheckter, i'm a pediatrician here at the university of miami medical campus. thank you, all, a very instructive panel. i can believe and get excited about the transformation of acos, that we will see improvements in the medical care and even some slowing of health

care costs. what i don't see happening necessarily from what i'm hearing is that we are really going to transform population health and that if we don't change health, we're not going to really rein in costs enough for this country. and i say that, i'm grateful that the third bullet for the cms is population health. but it's still the third bullet. we're still talking about patient-centered care rather than population-centered care. and your list of outcomes doesn't really list anything that would be considered a population health outcome. when everybody else outside of government starts thinking about population health, it'll be very important to know how are we going to define that? so is the population what my insurance plan covers, or is it the folks that are able to walk through my practice door, or will it be a geographic population? and then how do we compensate from the long island population versus the rural arkansas

population? so i'm very interested in your comments about how we change that dynamic, because the incentives right now even with the movement to acos i don't see them lined up for business to tackle that on. thank you. >> dr. cosgrove and steve, would you two like to take a shot at that from the hospital and foundation/physician perspective. >> >> yeah. well, i think i showed you some of the examples we're trying to do in terms of population health, and i think that we've shown the same sort of thing around both obesity and smoking which are the two big issues, i think. and acting, essentially, as a employer and a health care provider of all of our some 70,000 dependents and employees, you know, we have a big stake in that. and i think that it's also going to take both, two things, both carrots and sticks to begin to have some impetus, some impact

on the population in terms of improving health. and i don't think you'll do one without the other. >> yeah, i don't think any one aco or one health care delivery system can tackle the entire state population health, but as dr. cosgrove said, that first step is critical. so we anticipate multiple acos in multiple markets, and if they promote wellness, and if they stop smoking, if they pay for the gym, you know, promote wellness, i think it takes those steps. it doesn't get the gross improvement that the physician was talking about, but we will start in those populations. >> employers, by the way, can do a lot along this lines, too, and have a responsibility, i think. >> if i could just add -- >> please, john, yeah. >> you know, to do population health, you need some basic ingredients. one is the flow of information. and until recently there was not

a particularly good flow of information to cross the different aspects of the system, with exceptions. you need, absolutely have to have that in place. and so you look at the various pieces that are coming in, i think the ingredients for population/health management are being developed, but it's not a stage you can jump to right now. so i would say there's a lot of pieces in place that as they mature will make it much easier to do that. >> so to tell you what our strategy is, if you look at the beacon communities, cms is beginning to work directly with the beacon communities on population health. beacon communities formed around the grant that was given by the office of international -- [inaudible] how to use the information technology to have a broader impact on a population. organizing beyond just one aco, multiple acos around communities and looking at the population health issues of that community. because these, there was a market of people who were willing to do that, we asked

them what do you need from us? first thing they said, we need information. we need your information. so that's what we're providing. the next thing is we need to coordinate with our federal agencies that have resources to also help these kind of organizations. the problem has been you cannot do this with a four-person practice. you can't do it with a clinic. you can't even do it, to some degree, with a health plan or a hospital and have a broad impact. because there's so many upstream issues that have to be addressed. you have to do it within an entire community, and multiple providers coming together. so the bee can community is a model -- beacon community is a model that if you look at that, we're using that as our kind of starting point. we will come up with other innovations related to population health. it will be our goal to reduce the number of heart attacks and heart disease in the population, and we are formulating our strategy to do that and how we will use these developing acos

to part of our vanguard for helping us do that as well. >> go ahead. >> the american health care recipient undoubtedly is the beneficiary of among the world's finest and most advanced technological infrastructure, but all too often that infrastructure is not used to create a quality outcome, but rather defensively by the practitioner. as an open question to the panel beyond behavior interventions, beyond disruptive technologies, can the goals of aco cost reduction and higher quality outcomes succeed without structural changes such as tort reform which reduce the cost of ancillary care borne, for example, by medical malpractice? >> dr. cosgrove, why don't we start with you. [laughter] >> well, tort reform, clearly, was not touched in the legislation because it was,

essentially, the third rail. and you had a group of legislators the majority of whom were attorneys that you had to deal with, so it was a nonstarter from the get go. the rationale for that is that this is a relatively small percentage of the health care cost across the country probably accounting for less than 3%. as you looked at this. and so i think that what we're trying to -- what the legislation was trying to do was go after bigger fish and get something that legislatively was going to get through congress. and i think that eventually that is going to have to be one more incremental step, but i don't think it is the essential step for the things that we've talked about, in other words, driving quality, taking down cost across the organization and getting more people covered.

>> i'll add a comment. i knew back when the legislation was being written, there was a lot of dialogue from different constituencies, and when you get to the summit of evidence-based medicine, clinical guidelines and things like that, there was a discussion about is there a quid pro quo there where if there is some agreement to move towards that direction, would there be some kind of a tort reform, and that didn't really get there. but i don't think you can get, i don't think you'll have as much success with the latter unless you get something fixed on the former. but i think there has been discussion, i don't know about some kind of medical courts or some kind of a moderate change this year that the president's at least mentioned in several addresses. >> you know, this is such a hot button issue because you can argue it from both sides. here's what we believe. one, that physicians who practice in an integrated delivery system have less, seem to have less liabilities.

and so if we can organize a system so that a physician isn't practicing outside of a coordinated care system, i think electronic health records reduce liability if it's coordinated, reducing error rates, readmissions, hospital-acquired conditions, etc., all will help to reduce liabilities. we know that best practice drives those things down. now, at some point accountable care organizations and medical homes and others will be organized in a way that we can then have an organized discussion about how do we address any additional liabilities that need to be addressed? either through the aco or through other means that we'll have at our, that we'll have. but to the patient, to the consumer the reason this is a hot button issue is they think they're going to lose something to give something to physicians. and until that changes, million there's a trust and a belief,

it's going to be hard to address this as a legislation. >> thank you. go ahead. >> herb pena, family physician by training. my question/comment have to do with primary care. i think that we are engaging to go into battle, and we forgot to train the marines. [laughter] what i mean by this is it takes a good 12-13 years to get a primary care physician that is fully trained. we are going to get 36 million people into the system, and if you do the math, it means you will need immediately anywhere between 12,000 to 15,000 primary care physicians. where are they going to come from? if you go to any family medicine conference, you will see that

most of them look like me and older. [laughter] and i already retire because i was driven out of business by medicare. so what are you going to do about this shortness of physicians that is going to be critically worse in the next few months or years? >> i'll make, i'll make the first comment, okay? >> sure. >> the first thing i'd say is the scope of practice issue is a source of a tremendous amount of capacity this system. there's a lot of things that doctors do today that they do not need to do, so that's point one. that won't solve the problem, but that will help. that'll also allow you to do more in the retail health environment. there's a lot of offices that are underutilized in areas like ophthalmologists and others, so there is some capacity to absorb a lot of this if you fix some of those scope of practice issues, number one. number two, if you change the

incentives. a medical home model, if a physician is rewarded for the health of his population as opposed to having to do something that fits a code, then you're going to create a different set of ascendants, when you combine it with the former, you'll see some physicians willing to shift into that that aren't today. now guys who are experts, i'll let them talk. [laughter] >> i agree with john. the work force studies we've had for years that have defined the need for more primary care, the aco will have different incentives, and family medicine, you know, primary care will be recognized. the other thing is patient-centered medical home uses a team approach, not just a physician. and that team is critical. that's the way we'll cover more americans with the system. >> all right. i would just add to that i think while we're looking at a huge shortage of physicians, we're also looking at a huge shortage of nurses which is something around a million, shortage of

nurses across the country. and i think what this means is as we change the care model, we're going to change who the providers are. right now, for example, in cardiac surgery at the cleveland clinic, we have 80 physician assistants to help 13 cardiac surgeons. similarly, in our operating rooms instead of all being staffed by nurses, 40% of the nursing labor there is done with techs. so i think we're going to see the jobs migrate to the person who's able to do them, not to the most qualified or potentially overqualified individual who frequently does those jobs now. >> what i'd like to do if we could right now because we are in our last only seven minutes or so is, and i'm apologetic that i don't think we'll probably have any more time for anymore questions is, first, thank the university of miami so

much for allowing us the opportunity here today in this forum to really have a good discussion. and then as we close i'm going to ask each of our panelists to give some final thoughts. and so what are, what are the takeaways that each of them would like to provide to us. and i guess what i would ask is that we go in reverse order of presenters. so, tony, if you would start and we'll run down. >> i got it. [laughter] what i take away from this is that i sense people are ready for a change. but there's a lot of questions, a lot of still unanswered issues that will have to be addressed. what i tried to provide was a framework today of what we see cms aligning to drive the system so that people can get ahead of the puck, so to speak. but i do understand we need to

come out and work with communities, work with organizations. and so one of the takeaways that will help me articulate this to our new center for innovation is their role in helping to prepare communities, organizations to be successful in this new world of accountable care. whether it's medical homes, whether it's accountable care organizations in advance of them moving the system through regulation in this direction. but the other thing i will give you is that we are focused and aligned to transforming the delivery system for america, and that's where cms is putting its efforts, its thinking. we're bringing in people who are going to help us with that, and we want to make it part of our think tank, if you will, if you will continue to dialogue with us. >> i guess my comment would be -- i think i'll get this

quote right since you used one earlier, john. mark twain, i think he said the definition of insanity is doing the same thing over and over again and expecting the same result, and i think that's kind of what we've done in health care. you know, i'm a -- i don't know if you watched the president's krause last night. regardless of your political affiliation, i think he made some points that apply to this debate and that is enough is enough with the rhetoric. the system's broken, you can't deny that. you know, no matter what perspective you have, if you're a physician, it's broken. if you're a consumer, it's broken. if you're an employer, it's broken. if you're the government, it's broken. we're losing ground competitively despite the wonderful things we do, so i would say each of you who's in a position of influence, try and start the next conversation giving the other party the benefit of the doubt that they are, in fact, trying to do the right thing. >> i think the takeaway is that the solution is a partnership. we've talked about providers. the insurers, the employers and our patients will take that

partnership to transform the system. >> well, first of all, i'd like to thank the university and john for convening us and giving the opportunity and particularly thank tony for the work that he does. i know that this is difficult, controversial work, and you probably hear more complaints than you do atta boys. [laughter] so consider this an atta boy and a thank you. [laughter] that's sucking up, isn't it? [laughter] [applause] but, but i think that, you know, at the end of the day i think the word partnership is correct. i think that we have to get the incentives right for all parties involved. we have to get the incentives right for patients, for the physicians and providers, for the insurers, and as soon as we align the incentives, i think people of goodwill all the way

around will provide the right solution, and i think that we are in a period of transition. i fully believe that we can and must come out with a better system than we have now that will address all those people, individuals, groups, and i think that the key to that is getting the incentives correct. >> thank you all very much. thanks a lot. [applause] [inaudible conversations] >> afghanistan's defense and interior ministers are here in washington today, and at noon eastern we'll be live as they talk about the future of afghanistan's national security forces. it's hosted by the u.s. institute of peace.

and the nation's governors are also here in washington for their winter meeting, and coming up at 2 eastern the democratic governors' association will host a discussion with ceos and labor leaders on the nation's economy. and you can see that live, again, starting at 2 p.m. eastern on c-span. >> this weekend on booktv on c-span2 michael showier, former sheaf of the cia's osama bin laden unit. william mcgowan thinks "the new york times"' liberal agenda has tarnished the organization's reputation as a news source. look for the complete schedule at book booktv.org and to get our schedules e-mailed directly to you, sign up for our booktv alert. the centers for disease control estimates food born diseases cost about 76 million illnesses and about 5,000 deaths

in the u.s. each year. now, behind the scenes of foodborne illness litigation with an attorney who defends the industry. this is just under an hour and a half. >> okay, hi, everyone. well -- welcome to the last panel of the day in this room, inside foodborne litigation. i'm going to introduce our moderator, josh abrams. he represents mass general hospital, newton wellesley, north shore medical center and all other partners, health care entities in proceedings before the ncad. and in addition, he's also an adjunct law professor at northeastern university, so join me in welcoming josh abrams. [applause] >> thank you. um, kind of set things up here a little.

raw milk, sprouts, petting zoos, eggs, cruise ships and jack-in-the-box, those are innocuous words in if most settings, and they were innocuous words to me before the last few days when i started looking a little more in this area. i was asked to moderate this panel just a few days ago, and my first reaction was why me? it's true, i work in a health/law setting and teach health law and disability law, but this is certainly not my field of expertise. that being said, i don't think it's a lot of people's field of expertise and, in fact, we have a pretty good representation of the best in the field up here on this panel. more on them in a moment. but i want to start this out by saying that as i did some research into this area over the

last few days, it's some pretty scary stuff. i can understand why a lot of attorneys wouldn't want to make this their calling. it really impacts every one of us in this a way that almost no other area of the law does. we all eat, and there's no other way to put it, we're all in danger. what each of these attorneys brings to the table, though, is an interest in trying to make the world a safer place to eat. where from a regulatory -- whether from a regulatory stance enforcing food safety laws or a plaintiff's stand holding bad actors to account or a defendant's stand helping food producers avoid costly and damaging litigation, each of these attorneys plays a critical role in making the food industry safer and more accountable. i want to turn the microphone over to them as they have, i know, so much information to impart about litigating foodborne illness issues, but before i do, some quick introductions.

jason sapsin is currently counsel at -- sorry, paul schubert pc out of denver, colorado. but he was formerly chief counsel of, chief counsel in the fda's office of chief counsel and currently advises clients in fda inspections and enforcement actions as well as in regulatory compliance counseling. as an in-house attorney, i can tell you that i know firsthand the value of this kind of expertise. nothing like a former regulator in your corner to make sure you know how to avoid costly mistakes. and we're lucky to have him here as well. shawn stevens is a member of the law firm gas, weber mullins llc and defends and just as critically counsels kleins regarding -- clients regarding

foodborne illness litigation. he's truly one of the best and brings a wealth of information to us today about how to defend and, as we all know is even more important, avoid having to defend these kinds of suits. finally, fred pritzker is a founder of the national food safety law firm pritzker or olson pa. i googled just the term foodborne illness litigation, and the first site to come up was this great web site with tons of information on the subject and i was, frankly, halfway through it before i saw that it was the web site of one of our speakers. he is both an educator and a zealous advocate for food safety nationwide. there couldn't be a more distinguished member of the bar representing the plaintiff's point of view. so without further ado, i want to turn the microphone over to jason sapsin.

>> all right, thanks, josh. if we weren't being recorded, i would probably keep my mouth shut and take the promotion, but for the sake of the record, i was associate chief counsel at fda. no, that's okay, but i think ralph would be offended as would all my former colleagues. i want to take you quickly on a lightning tour of fda from the standpoint of food and food safety. notwithstanding the absence of the afternoon coffee service. i'll see if we can move along as quickly as we can. so, essentially, when you look at fda, you're talking about possibly the oldest, in fact, i think the oldest federal agency charged with protecting public health. fda just to give you a sense of the scope and scale regulates 25 cents of every consumer dollar spent in the united states and ten cents, ten cents of which,

of every dollar, is spent on food. fda has jurisdiction over 90% of -- 80% of all food consumed in the u.s. with domestic registered food establishments and swg like 231 registered foreign food facilities. it has currently about nine million import entries in food alone on an annual basis with about 15% of the u.s. food supply being imported. it's higher as a percentage of particular food subgroups, so fruit and vegetables it can approach 50% depending on the category. i think it's important to think of agencies as it is to think of any large structure as organisms. i think that agencies like other significant entities and accumulations of people have personality, they have characteristics, they have a kind of a gee no type -- gene

type which takes in this its expression over time, so i think it's important to understand a little bit about the history of fda. and it all started with an analytic chemist who was hired, i think, in this 1848 who sat in, i believe, the basement of the then-department of agriculture. and his job was to perform analytic chemistry and what was, what was a new and growing field at the time. and then came dr. wiley. dr. wiley was active in the fda or what would later become the fda around the beginning of the 20th century. and wiley's commitment to public health and the promotion of public safety were his hallmark characteristics. and that's what he brought or attempted to bring, ultimately, to this organization that would, in time, grow to become the modern f, the a. fda. i don't know, you know, you may

be familiar with the good housekeeping seal of approval. i didn't know very much about where that seal comes from, but dr. wiley did because dr. wiley helped to invent it. after he left fda, he went on and worked for the good housekeeping organization, and he helped, he helped that really consumer advocacy organization to help to identify for members of the public what was safe, what was good, what wasn't. so that was a sense of what he was about. and maybe the best sense in part of what he was about and what the early agency was about has to do with the poison squad. the pose son squad was -- poison squad was something that -- it came to be called the poison squad in the press. this was a group of young, healthy male volunteers who basically sat in the basement, again -- spent a lot of time in the basement for some reason in the early years -- in the ag eating stuff. and the goal was to see what would happen, right?

so, remember, we're in the early 20th century, there's a lot of excitement about advances in the chemistry. it's better living through chemistry. the idea that the life of foods could be extended, foods could be made better, they could be improved. and so among other formulas and chemical compounds that many manufacturers were experimenting with at the time was, for example, far had hide. -- formaldehyde. and wiley had this supposition that maybe that wasn't such a good thing or maybe it was a good thing only in limited amounts, or maybe it might or might not be a good thing, but, regardless, people should know a hell of a lot more about it before it was tried out in the food. so in this a series of studies which would not pass modern human summits' protection -- subjects' protection, these guys sat, and they would eat. and, actually, if you look in the back of the picture, there's a gentleman called william carter who's one of the first african-americans in the history of fda. he was hired in 1902 as the cook

and the waiter for the group. he went on to get a degree in pharmaceutical chemistry and worked in the fda labs for 43 years. so for this and other work and other projects, wiley is often referred to as the father of the fda. and it was wiley's advocacy in part that led to the passage of the 1938 act. now, that act is the act under which the agency still functions, and it is deep in the dna of the agency. why do i tell you this? i tell you this because there are aspects of fda culture, i think, that can be traced back to this form of highly interventionist, highly active agents and government employees attempting to do what they think they, what they think they are, first, legally empowered to do and, secondly, what they think is in the best interests of

public health. the agency is at some part at its core a public health law enforcement agent i. agency. and that is an important part of the mission. now, that emphasis waxes and wanes over time. we've been through a period, i think, when the agency has focused more on what we might call market facilitation x now the pend -- and now the pendulum is beginning to swing back, and the agency is turning more towards some of its original roots. so what does that agency look like today? that's the new office building, it's one of the new, two new headquarters buildings. again, why do i show you a new headquarters building? one is it's just attractive. but the other reason is that the reason that this building was created and the entire campus says something about what the agency expects to be, what it hopes to be going for, it is creating or recreating a campus model like cdc or like nih.

and the goal -- the long-range goal, the long-range vision has been to pull in fda resources and encourage communication between the component parts, make it a science-based organization, make it collaborative, make it facilitate it ability to move quickly. okay. so six centers in fda. drugs, biologics, devices, vet med, the new center for tobacco and, of course, sip sin. interesting point. would anyone like to hazard a guess as to which center is not going to be on the new campus? it's foods. foods is not going to be on the new campus. foods was move today a beautiful facility -- moved to a beautiful facility near the university of maryland in college park, and that's where it sits. and in some ways and, again, this is just, this is my, my personal idiosyncratic view.

in some ways in my mind, at least, this reflects this uneasy distinction which has existed in the agency between the world of food and the world of drugs, devices and biologics. so everybody but foods is over there. why do i say one office, really two? the most important office in fda that if you're not familiar with the agency you need to know about is the office of regulatory affairs. these are the guys who, and i say this, i say this mostly joking, these are the guys and the women, now, today who would be in wiley's poison squad if wiley were here and wiley were allowed to have a poison squad. they are the approximately 3,000-plus field force of fda. they're the people who stand at the borders, they're the ones who conduct the inspections and the investigations. now, fda has approximately 10-12,000 employees, it has a budget of $1.3 billion, it monitors goods worth over a trillion dollars every year.

i want to mention the important role of two other offices. one's the office of chief counsel which i think many people inside fda and outside fda have felt has played an increasingly important role and, from various perspectives, sometimes too much of a role in the operations of the agency. the other office i want to mention is the newly-created office of foods which is, has been formed in part to try to address the metaphysical problem of organization and coordination that the physical design of the new plant is trying to address in the environment. so the office of foods headed by deputy commissioner mike taylor is supposed to be talking to ora, the center for foods, center for vet med and coordinating the agency's activities on an agency wide basis. so when fda looks out at the

world of food in the united states and food safety, what does it see? there are two accepted -- i'm not actually going to comment on the reliability because the statistics are far too complicated to draw any firm conclusions. but for most of the last decade, in fact, all of the last decade fda has relied on the cdc estimate from 1999 that suggests there are about 80 million foodborne illnesses, 10-25,000 hospitalizations and 5,000 deaths. so that's the scope of the problem that fda's been seeking to identify. by the way, the little mousy guy, that is a real photo, and that's an example of the kind of thick that the agency, frankly, doesn't like to find very much. and that's one of the reasons why we tend to think as public health people -- i used to be a public health person -- that regulation is a good thing. but in any event -- >> was that found by a consumer?

>> yes, i think that up with was. and if it wasn't that one, it was another -- it was one or two other cases that were very similar. yes. so that estimate's been revised. and there was some discussion of that this morning. and that's where you get to the 2011 estimate, but it's important to understand where these numbers come from because it's tempting, it's theming to arrive -- tempting to arrive at easy conclusions regarding the agency's estimation of foodborne illness. so, for example, neither of these estimates came from fda, both were done by teams of biostatisticians and epidemiologists. so if you add up the figures for 2011, you're looking at productionly 47, 48 million foodborne illnesses compared to 76 million foodborne in the '99 estimate. it seems like a big difference. but as we know, you have to understand where the numbers come from.

so both of these estimates are built on best stems -- estimates, best guesses, best assumptions on assumptions. to the point that, for purposes of example, if you were to take the 38.4 million, the estimate of 38.4 million unidentified cases of, i'm sorry, unidentified source cases of foodborne illness, the confidence interval is, actually, extends, i believe, down to around 20 or 25 million or as high as 60 million. so be careful when you look at these numbers. but nevertheless, the new estimate that was published by, actually by someone i know who used to work at cdc, now works at the university of colorado, best statistical analysis from the data available at that approximate number. so that's why you get differences. and you see this a lot in biostatistics and epidemiology.

it's very difficult to figure out how many people actually get sick from food and why because we rely on a passive surveillance system, right? there are not armies of people -- despite what some, i think, like to portray -- there are not armies of people fanning out across the country asking individual americans, did you get sick? when did you get sick? can i see your lab results? number one, there aren't people to do that and, number two, frequently there aren't lab results. so it's a very difficult thing to estimate. in each case the number before is foodborne illness of unidentified epidemiology and in the second case it's an identified bug, okay? so that's roughly the picture. and let's go ahead and look at some simple enforcement metrics. so these are taken from roughly the second bush administration from 2004 to 2008, it's publicly-available data, it's reported by fda itself.

as you can see, generally a decline in one easy metric, foreign and domestic inspections through fiscal years 2004 and 2008. this is also the period, by the -- roughly the period, by the way, during which import lines of food were roughly doubling, okay? so there's, there are inverse slopes on these, on these two angles, right? more food coming in, in theory, more complicated, more, more distributed ways of bringing food into the market. at the same time, fda was able to, unfortunately, accomplish fewer and fewer inspections. there are lots of reasons for this. some of them are, i think, frankly, political, some of them have to do with the difficulty of getting a bureaucracy with the number of responsibilities that this one has to be able to

change and keep pace with the changing demands in the marketplace. if we look the same here, import in domestic samples, again, here are the changes -- here the change isn't quite as obvious. and you see there was a huge effort to keep import sampling up at about the same level historically it had been over the previous four to five years, and towards the end of the period a little bit of an increase in domestic sampling as well. but, again, this is the same period of time in which the sol group of imports, for example, coming into the country was doubling or by some estimates even quadrupling. and then, finally, one of the most basic measurements. this is, or this represents roughly the number of -- or, actually, exactly. excuse me. the number of seizures and injunctions that the agency undertook during a period of time. part of the reason for this is

because up until recently in the passage of the new food safety modernization act, the agency didn't have mandatory recall authority, and frequently what it was forced to do was to rely on the threat of legal action in the form of seizure or injunction to get noncompliant manufacturers, importers or distributers to comply with federal law. we're not talking about big numbers here, obviously. much of the agency's enforcement work happens below this level. okay? but changes in it, because the numbers are small, changes in it can feel -- at least from inside the agency -- to industry as if it were particularly significant, and fred and shawn may have more to say about that. okay. so this was the, by many estimates and by mine and this is my personal view and has nothing to do with the agency other than the fact that i once

worked there, this was what i would characterize as a generally declining enforcement environment towards, towards the end of the 2010 decade. the the environment encountered by the new administration. so let's take a look at some of the critical players for a minute that the new administration brought in. so first is dr. margaret ham berg, former city health commissioner of new york. what, in my mind, one of the things that is most admirable about commissioner hamberg is that she was a city health commissioner. city health commissioners, at least in my experience in public health, are people who are very action-oriented, they're very con stitch went-friendly. if you're a city health commissioner in if new york or baltimore, i had a chance to work with the baltimore city health commissioner for a little while, you -- it is not unusual

to get calls from people in the city complaining about rats in the garbage cans or food that they think they may have been served that was spoiled at a restaurant. and their inclination is to do something about it and to take action relatively quickly. and that, i think, is tempered by, i think also, an acknowledgment that she's presiding over an extremely complex organization, the kind of sensibility that dr. hamberg brings. okay. this is dr. steven someoff, former directer of cfsan, and this is one of, this is one of my old bos. bosses. brought from the office of chief counsel and now is acting directer of cfsan. there are four -- at least four agency components interacting in any food-safe -- potentially, interacting in any food safety problem. there's cfsan, there's the office of the commissioner through, in some cases, the office of foods, there's the

office of chief counsels, there's the office of food, that's mike taylor, then there's lra and ralph taylor, now the civil litigator and ora's new directer who is derek corrigan, an hhs inspector general attorney and a former partner at arnolds importer. one of the interesting things, i think, to observe from your point of view since this is a law school is that many of these people are former attorneys or practicing attorneys. this team in particular, i think, has an unusual amount of legal understanding and fiction fiction -- first case. they're also inclined, i think, to be more proactive which is part of the point. the gentleman to the left of dr -- i'm sorry, of derek corrigan is dr. joshua

sharpsteven. he just recently left. he temporarily ran the organization before commissioner hamberg was appointed and was probably one of the most energetic leaders at fda in a long time. very enforcement-oriented. in june 2009 commissioner hamberg wrote in the new england journal of medicine, and she talked about what she expected and what she thought the public and the medical profession expected of fda. and she stressed three things. she talked about -- or she wrote about, rather, education, regulation and enforcement. and you say to yourselves, why is that significant? it's significant in part, i think, because it's not that often that a commissioner of fda writes an article that has it put in -- or offers it for publication in the new england journal of medicine. but the other reason is that she specifically mentioned the role of enforcement. and this had not been an

emphasis in the agency's public statements to that degree in the last five to ten years. and so as fda often does in part of its coordinated message to industry and to the consuming public and to the medical profession, it then followed up in a more formal statement at least internally in 2010. and in it it talked about enforcement. now, this document from which this is taken is a combination of the input of, again, multiple components of the agency. so it's ora, it's the directors of compliance for drugs, foods, vet method and all the others -- vet med and all the others and, of course, the office of the commissioner. it's a big deal. it's a big deal because you've got to go around to every one of these centers and the directors and the compliance directors and get them to agree on the things that they are all going to say publicly they are about.

and with respect to enforcement, setting their philosophy what they said is that it's one of their highest priorities, and then they explained why. and their theory of, the agency's theory of the market. and that is, in simple terms, that most industry players are going to comply with the law thawz bay think that's -- because they think that's the right thing to do. it makes human sense. but there are some -- it's very difficult to tell how many with any accurate sense -- but there are some who simply will not. and for those actors they need to be put on notice that the agency is watching, and the agency is prepared to take action and, frankly, the companies that comply and take appropriate safety precautions and regard the rules and the laws need to be protected because that's costly. it costs them money to do that. and so the agency and our society as a whole needs to make

sure that they are not unfairly disadvantaged. so that's the rationale. okay. i want to give you a sense, quickly, of where fda has been going, where it plans to go. the work plan is a document that the agency sets approximately a year in advance. the numbers that you see there reflect something called ftes or full-time equivalents. it's not quite the same as full-time employees. it's a complicated personnel calculation, but it's full-time equivalents. oh, no, i'm sorry, this isn't that -- i took that slide out. bear in mind the fair time equivalent thing, that number's been declining as have the numbers for inspections and samplings and so forth. i apologize. this is the raw number of inspections that the full-time equivalent fda people are going to perform. you'll notice that from fiscal year '09 to fiscal year 2011 almost every category has a

slightly planned -- a planned slight decrease in domestic inspections. except for food. the agency feels, i think, strongly that food is one of the areas of greatest vulnerability. and so to the extent that it has been protecting any of these numbers or increasing my of those numbers, one of the two areas it's been doing that is specifically in food, okay? all right. fiscal year 2008 the total number of inspections was 15,000. so, you see, roughly we're increasing -- the agency's increasing it by almost 20% in each of those years. ..

>> this is my last slide. this is the new food safety legislation which has been talked about a little bit. as has been correctly pointed out there was no mandatory recall authority from the agency. i can say from personal experience, there are companies that will refused to withdraw or

hold their products from the marketplace. it is not the case that the market exercises sufficient discipline to enforce voluntary compliance. and the agency can spend a lot of time, frankly, in the state of uncertainty negotiate with companies when the evidence is fairly clear. this attempt to remedy that. records tracking and tracing again, the idea is to be able to identify contaminated food, figure out what went, go and get it as quickly as possible. inspections are to be increased, and our metrics for inspections under the new legislation. finally, the international parity under which the agency will say we've looked at the products coming from this particular country. we think that that country lacks an adequate enforcement safety mechanism, and so we are putting the agency, putting that country and producers from the country on alert. and, finally, i know shawn will talk about this i think, hazard

for everybody. except for small establishments like small farmers, the goal is under the new legislation to require every food producer in manufacturer to go through, to systematically identify potential sources of problems in its operations and to address those. so, that's where fda is today. thank you. running a little over. i appreciate it. [applause] >> i think, fred, do you want to -- >> good afternoon. my name is fred pritzker.

i represent people who have been harmed by foodborne pathogens, and this is, shawn and i are last because we are involved in the place where the rubber hit the roads, so to speak, where everything kind of comes together and where companies have to decide how they compensate individuals who have been harmed by foodborne illness. really what it comes down to is fecal matter in food, and it's something that most people find distasteful, and, frankly, is a. and it's one of the great tools that plaintiff lawyers have because whenever you can talk about it, corporate wrongdoer causing fecal matter to be infused into your food, you are

a leg up in terms of proceeding. and that's, frankly, one of the reasons why very few of these cases get tried. what i'd like to talk to very briefly about today is how do we as food safety first evaluate cases? what constitutes a good case? what can we do, what can't we do ask our firm is involved in just about every national foodborne illness case that you've heard about. we have been involved in a spinach litigation. corporation of america litigation. litigation. involved in the in poultry which you get lots of chain restaurants. there's also one that i just want to touch on very briefly, the broccoli farms? that is a raw milk, cheese that has been implicated in an outbreak involving cosco scores on the west coast -- osco stores

on the west coast. we've had a lot of talk about raw milk. for those of us who do this for a living, raw milk is like drinking liquid tuberculosis, and it is one of those things where believe, and i realize i'm talking to you right now and are some of you in the audience are thinking, my god, this guy just doesn't get it. he doesn't understand. they have virtues and health, but i'd like to tell you a little bit about that and i'd like to do in the context of the case that we are involved in right now, raw milk case, where a man who was second as a result of drinking raw milk at a high-end food store in pittsburgh area is still basically quadriplegic, really functional equivalent of one, resulting from the consumption of raw milk. and i'd also like to talk to you about the lady who we are representing in phoenix who is

basically bedridden and near death as a result of eating the cheese that was made from a small grower, but who is now near death as result of eating this food. on that about which science has been subordinated to believe. and that's a thought of what drives a lot of the foodborne illness issues, is the difference between science and belief. and one of the things, the great things about our system if any of you lawyers or law students are planning to be lawyers, this is an opportunity to go before people can prevent actual data from experts were all the hype cuts away, and what everybody has the opportunity to present to a jury of your peers what the actual facts are, and they let the jury decide. and it's a great opportunity. i mean, i'm talking to law students where if you ever wanted to affect change, this is

the place to do it your this is the place to do it because between money and reputation, that's what drives food safety. the foodborne illness outbreaks that you hear about are those in which companies are horrified to know that the products are implicated, are fearful of paying out millions, tens of millions of dollars in compensation. and that's what really drives food safety. as much as regulation does, this is what drives it in the public's mind. so let's see, pennsylvania, raw milk case i just talked about. national stake in poultry. if you go to any one of the national chain restaurants and what they're probably serving you and you order a steak is tenderized meat. mechanically tenderized stake is the cheaper cut, rougher cut of meat that goes through this little needle device that

softens it out. and what happens is what is called translocation we have the pathogen on the surface of the meat that norman would be killed, pasteurize out and when you see the meat on the surface but because of these needles gets penetrated into the middle of the steak so that when you order simply meeting are rare as many of us like to do, you haven't cooked to a high enough temperature, 106 degrees to kill it off so that you are still consuming beefsteak which is usually thought to be safe, it still laid with e. coli. one of the cases where representing is an 18 year-old woman who was at applebee's in ohio celebrating her 4.0 high school quarter, and had mechanically tenderized steak that she did not know about. no one knows about this. she went on to develop e. coli poisoning and then develop into

a syndrome, and now has 50% of kidney function at age 18. and by the time she's 40 or 45 will require hemodialysis and transplantation. it also is hypertenshypertensive social have difficulty having children. so i mean, this is the real aspect of foodborne illness. this is what it really comes down to. i'll skip some of those because i want to give shawn an opportunity to rebut what i have said. what do we do? we hold wrongdoers accountable for violating food safety rules. we take fair compensation for clients, and in the process would also advocate for food -- say the figure to what constitutes a good case? first of all we are looking for a documented outbreak of foodborne illnesses. most foodborne illness cases are not linked back to an outbreak. the majority of people who are

harmed, in the millions of people injured each year, are ones that are never correlated to an actual foodborne illness outbreak. so we're trying to do is follow up the heels of local, state and national agencies that are investigating foodborne illness outbreaks. so we want to first of all find out if there's an outbreak going on that we know about, that we believe might be responsible for individuals foodborne illness case you're and by the way, i want to just digress for one quick moment. we've been looking today, the metaphor that seems to be apt is the google earth. when you look at google earth, drives around the you get dizzy watching it for older folks like me come and then you suddenly come down in kazakhstan or south america or whatever. we've been looking at this as kind of a point to list of this act of you i like to focus on is not, you know, i'm not

suggesting -- the emergency room which is what often see these people, or in the hospital where you have these people who are not interested in the politics of foodborne illness. they're not interested in the regulation of foodborne illness. they are interested in getting compensation for the losses that they have suffered, and they want the system fixed. they are outraged that the food that they have eaten taken in good faith is poisoned. so, what else are we looking for? the first thing, i can't say how many cases i get a day, calls a day for people around the country who are saying i am sure that it came from the hamburg i just ate a couple of hours ago. or the place that i was at yesterday because i really didn't eat anything then i got sick. well, we first have to know what foodborne illness pathogen the eight. the only reason, the only way we can again but that is through a

stool test that everything is by stew in foodborne illness. it is the backend of a cow or the backend of the victim. and we need for devout identify what pathogen is responsible, and that's usually done by a stool test that will identify whether they have for example, e. coli. at e. coli doesn't tell us anything. when we are trying to narrow down these cases, what we look at, the metaphor is a funnel. at the top of widest part might be a stool test that confirmed they had e. coli. but e. coli doesn't tell us where the e. coli came from. the next step we have to figure out is if it one of the other species that we know account for human illness. and then farther down is been trying to come up with a genetic fingerprint or that's the important one demonstrates whether that pfg pattern, whether that pattern matches up with other outbreak victims. that's the microbiology of these

outbreaks. and we need to look at the epidemiology of it. if we know that it came from a particular food or a restaurant, we need to be able to show, notwithstanding the fact that they have the same pfge pattern which may mean almost become a deadly but that's where this came from, we still need to be able to prove that they ate the product at the same restaurant, at about the same time, the same general area to understand that they had an epidemiological he linked as well. so we're first looking for an outbreak, they were looking did have the actual pathogen associate with the outbreak they were looking for the microbiological evidence to determine whether they have the same genetic fingerprint. to have the epidemiological evidence that demonstrates that, in fact, they were proximately related to this particular product. then the other thing we're looking for is because this is a business, this is about money, are the damage is substantial enough to justify the time and

risk and effort that we have to put into a case. because after all, we are as plaintiffs lawyers. capitalists. everybody hates plaintiffs lawyers because we think they think were antibusiness but, in fact, we don't get paid until our clients get paid. so we are the ultimate capitalist. and in the final point which is somewhat cynical is to make sure that the defendant has enough assets to justify making a claim against them. because, in fact, poor wrongdoers are often times not held morally and financially accountable for the harms and losses they cause. all right, so this is the first issue. document outbreak of foodborne illness. if you look out, if you go to the fda or the usda, there will be outbreak reports. this is a summary of one. this involves the national steak in paltry one about a year ago.

been a stool sample, had to throw in my stool sample humor. if you do google images, which is transformed by a bill to be a public speaker, i came up with this one. who would've thought that anybody would give stool samples enough consideration to actually think about something like that? this is a pfge pattern but basically what pfge is, i don't want to cut shot off, so please let me know if i am -- am i getting close? i'm done. no. pfge is basically the testing involved. this is the epidemiological evidence. the editor of the plaintiff and defense lawyers look at to make sure the thickness occurred in the time period in which it occurred. substantial damages to the hemodialysis machine, defend with enough assets. this is a country college wrestler in oklahoma that was a

huge outbreak about two years ago. scores of people were sick. if you are killed this restaurant had $1 million in coverage. there was no point in bringing a claim because there was just not enough money to go around to compensate all of the terrible victims. all right. i was going to talk about more about the legal issues involved about how we prove these cases, but in the interests of equal and opportunist -- equal opportunity for defense lawyers i would end my remarks, and thank you all very much. [applause] >> and we will have time after the last speaker has gone to talk about some of the other issues that he didn't have a chance to go over, either through questions or through speaking among each other. so i guess the next presentation

up. >> well, i'd like to start off by saying thank you to fred. he could have very easily spoke for hours on these topics, giving us depth of expertise, and he truly is an expert in this area. and one of the best. and in litigation, plaintiffs always to go first falling bide -- followed by the defense was gracious in allowing me at least an opportunity today to speak following him. my name is john stevens and i with a law firm of mullen space to milwaukee, wisconsin. for about a decade now i've been representing the food industry defending foodborne illness claims. one of the only attorneys in the country who has devoted his

entire practice exclusively to defending industry in these types of manners. our mantra is probably defending the hard-working americans who see our families. we do that in a couple of different ways. number one, from preventing litigation, speaking to industry groups, talking with clients, helping them find ways that they can reduce risk. also, when the inevitable sometimes does occur managing outbreaks. and, of course, defending the claims brought by plaintiffs lawyers like fred that will always follow. everything am going to talk about today is also located -- >> it's gone. >> just told of the computer and walk it around.

>> no tech experts your? apparently not. [inaudible] [inaudible] [inaudible conversations] [inaudible conversations] >> fred, what did you catch?

-- touch? >> sorry about this. [inaudible conversations] [inaudible conversations] >> now we are on the right side of things. everything i was going to talk about today is on a website. you can visit that. it's defending food safety.com. we are going to talk a bit today about uncovering the truth in foodborne illness litigation. and we are really operating are talking under the umbrella today from seed to stomach. some people talk about it in the context from farm to fork.

in our world, the world in which fred and i operate is really from crop to court. now how many people in this room has seen the tv show deadliest catch? okay, it's a television show about a lot of hard-working americans who go out and attempted to their level best in the face of adversity to feed our families. and the steam out to see. many times each year trying to raise their families and also feed our own. and in the context of doing that they are faced with all sorts of unpredictable scenarios. things that they know might occur, but oftentimes are unanticipated. from gale force winds to ice freezing on the ship, to individuals, men or women falling overboard. and, of course, the rogue wave. and it's very similar to what we are confronted with in the food industry. despite how hard some companies

do work, despite the best intentions of their leadership or the quality assurance people, no matter how robust their programs and interventions to use, we are talking about micro organism that exist naturally in our environment. and oftentimes despite the best efforts unknown to us they can still make their way into food. so i like to think of this world more akin to the deadliest batch. and it's the same issues and problems that confront the hard-working americans are trying to feed our families. and sometimes when pathogens to make their way into our food supply, all attention is focus on one particular company, things can be very difficult. and that's where of course individuals like fred will step in. but i want to talk a little bit today about dismantling the case of liability. and in those cases where there is the true defense, not a product outbreaks in because of always occurred and they will continue to occur. when they do occur and our illnesses, there will be losses

to -- there will be lawsuits. if you do a google search for a slip and fall a journey you will get about 20,000 hits. if you do a google search for food poisoning lawyer to get about 300,000. of course, fred is at the top of the list. there's a lot of lawyers out there who are just waiting for the next outbreak so that they can try to get a piece of that so they can file a lawsuit. food safety of course is in the news. when our outbreaks, those lawyers will drink losses and they will file claims. a lot of things that we need to do it on the plaintiffs side of the bar or the defense, and fred talked about this, understanunderstand the pathogen at issue. understand the scope of any particular outbreak that may have occurred in and understand the circumstances of the alleged illness but i'm not going to talk about those issues. fred has address those. he has a claim that would be very, very difficult to defend. what i want to talk about today is the instances in outbreak investigations and litigation

where mistakes can be made. because we hear about an outbreak or we hear that a particular company may be at fault, doesn't necessarily mean that it is. what we often see is what's only on the surface, the health department report showed the tip of the iceberg. but what's underneath the water? we will talk a bit about that today. that raises the question can we extract our client in any particular instance from an outbreak? that leads to my second monitor which is being innocent can and should account for something. now, when we're trying to understand the real source of a particular outbreak or a particular illness its import to look at incubation periods. it's important look at her own internal production records. where we did everything right, were we firing on all eight cylinders? its import to look at distribution records which i will touch on in just a minute. and, of course, preparation records, how was the product prepare. was it prepared in a restaurant or by the individual consumer in such a way that would insure or

at least make it less likely that that particular product was a source. source. i do? a woman who had cooked a hamburger and she testified that she put it in the oven for three hours at 450 degrees. a little bit of an exaggeration, but anything living might have been present was most likely killed. then, of course, other illnesses. thanksgiving dinner, there's 13 people. uncle louie was the only person who got sick. and the same type, same thing applies to restaurants. any particular give-and-take we serve 500 hamburgers, and yet only one person alleges they get sick. these are the different types of tools that we use when we are critiquing the source of an illness. i want to look quickly and most at distribution records. let's assume i represent a client that makes hamburger patties based in georgia. there's a woman in indiana who claims that she went to the store, bought those frozen

patties, put them in her freezer. eventually took them. a few days later became sick with e. coli. it was a horrible course. she was in the hospital for six weeks. develop renal failure and has $1.5 million of medical expenses and she swears up and out it was our product. fred talk a bit about genetic typing. the first thing i would in that circumstance is go to the cdc and find how many other cases, assuming this is an outbreak or a claim of or an individual who is coulter not link to any particular outbreak. i want to know how make throughout the country have that same genetic strain. if the answer is none, and i'm going to take a very close look at the product we produce and where we said it. if doing the relevant period i said to him and bounce out to the west coast which represents about 8 million meal choices and 3 million pounds on the east coast which represents about 12 million meals choices,

there's no other illnesses anywhere in the country, it's unlikely that my product was the source. same analysis applies, what if i do find other illnesses scattered that have that same pfge pattern. maybe some in washington, a few in north dakota and the couple in texas. but i don't history that any products to those geographic locations. again makes it very unlikely that my particular product or my clients product was the source. there's variability in different centers we can run. while epidemiology does help us defend these claims, it it shows these individuals and associated illnesses, large percentage of the country didn't necessary get sick from a product that my client produced. it also creates problems with respect to solving outbreaks. we learned in recent years that epidemiology alone is not always sufficient. a good example is the 2008 the national salmonella outbreak associated with at least originally tomatoes. a few bad weeks for tomatoes,

right? throw your tomatoes away. hide them. keep your children away from tomatoes. everybody in the country not helped by the media outlets believe that there was widescale salmonella outbreak associated with this particular product. the media had a lot of fun with it. the attack of the killer tomatoes they cried. but after a few weeks whereby we discovered it had nothing to do with tomatoes. it was peppers grown in mexico and imported. so mistakes can and do happen. another good example i like to cite is 2008-2009 salmonella outbreak. there were mistakes made there. the original days, this is august and september 2008. this is really showing up in the cdc's radar screen as a large-scale low-level national salmonella outbreak of those a cluster of cases in ohio and it just so happened that a few of those individuals happened to eat at the same restaurant. and aggressive probably rightfully so investigators

determined in the minds that the source of that particular cluster could have been something they ate at that restaurant because they all ate chicken. they assumed it was undercooked. the health department report was being written that the source of that particular cluster in that state was that restaurant when additional cases appeared scattered throughout the country. eventually we learned it wasn't undercooked poultry at a restaurant. it was salmonella in the peanut butter. i'm going to show you very quickly a couple of e-mails over the years relate to different outbreaks that we've been able to collect from various health department and health officials in the cdc showing that although people, best intentions, doing their level best under a lot of pressure, limited resources, constraints were time trying to figure out a lot of overlapping outbreaks. here's what i like. for chili i think i may confuse this outbreak with a different one. i think i may have typed the cluster number wrong.

sorry everyone but i'm getting really, really confused. we have several concurrent things going on here and are risk of confusion is high. we suspect our lab made an error. let's -- that's not good if you are the company. good grief, our lab over the weekend must've got the clusters next up or misinterpreted the patterns. sorry for all the confusion. a little bit of infighting between state and local health departments and federal agencies. got upset when someone applied we should be making sure something is done right. are you okay with this report? did he call you to coordinate the writeup? implicating a particular company as a source. he did not call me to coordinate the right and i am in disagreement with a lot of what he wrote. then, of course, the media has played a role as well with respect to increasing the confusion in some instances.

there were 70 news articles nationwide relating to suspected source of an outbreak. this is getting out of hand they wrote. we don't even have confirmation yet. apparently the law firm, and it's not france firm, has cross-pollinated to outbreaks for some reason it somebody needs to tell them they are wrong. and that's will be coming. i'm going to give you one example of a very large-scale outbreak we're at least on the surface it appeared that everything was done right and a beard that department investigators had found the actual and brightsource. indeed, they have not. my client was a national grocery chain, has daily service and also caters food on a regular basis. this particular instance they were catering thanksgiving dinners for a local church. the membership of the church would come in and they would all get together and eat. the church was also repackaging this food in styrofoam containers and sending it out.

volunteers would send it out into the community. individuals who are elderly or have less resources couldn't make it to the church, at least they could have a thanksgiving dinner. at the same time the deli on thanksgiving have prepared a large number of meals for a local warehouse. what we discovered was of the 600 meals that were sent to the church, 300 people got sick either eating them at the church or at their homes. 25 of the 50 people had received those meals at the warehouse had gotten sick. that's a very high attack rate. 50%. and, of course, there was the play. so he received one of these new after home. and it was the tradition on her thanksgiving to get together with her friend. they sit down and they would eat it and then the friend would lead your the friend left and assume she went to bed as she usually did. the next day friday after thanksgiving he tried to call her because he spoke every day on the phone by the phone rang continuously and nobody answered. the following day on saturday he tried to call again.

the phone rang. he tried to call multiple times and nobody answered eventually on sunday when he called the last time, nobody answered, he went to her apartment. he talked to her neighbors. nobody had seen her. there were today's newspapers sitting in front of the door. he was very, very concerned. they were able to gain access to the apartment with the assistance of the police. and the scene was mortified will. the bed was covered with diarrhea. a puddle of diarrhea flowing down the side of the bed. this woman was still alive but unconscious. laying on the floor between the dresser and the bed. it was legal material in print on the wall. the alarm clock had been pulled off the bed stand. it was laying on the floor and as such it was the phone was ringing, she was laying on the floor, semiconscious, she was trying to reach for the phone but could not. she eventually was rushed to the hospital and died two weeks later from sepsis after a very, very difficult sepsis.

now, the pathogen at issue here, the associate was speculation was after the dinner this woman had this which resulted in the center multi--- she was paralyzed when it counted. the question was was at the caterer, the turkey dinners or something worse that occurred at the church? we saw the female. we talk to somebody a few minutes ago and this was issued about a week and a half after the outbreak occurred stating they hope to have a news conference on friday. do not say anything but they will be able to identify the pathogen and the source. it's not the deserts, which by implication means it was the turkey. and, of course, there was a news conference. it was bad temperature controlled they assumed at the deli. they found the bug in the plate and they found the bug in the turkey. turkey was to blame.

and, of course, you know what followed, a lawsuit. well, the client had asked us to take a look at this case to see if we could help them because this is the type of work that we do. originally at first we said no, you are dead in the water. there's no way we can help you. it sure looks to me like it was you. he said no, we got great employees. we are employee on. they are well-trained. we we haven't had any turnover in this department for three years. we have a really robust food safety program. we don't believe it was us. we said okay we'll take a closer look. we went back to the original e-mail, and what struck me, a red flag went off because it was only a week and a half or a little more than -- less than a week after they identified the fact that outbreak had occurred. these outbreaks often take a long time to investigate it and i thought to myself what are they doing having a news conference announcing insource while the investigation is still ongoing. and sure enough a week later, this was the county health department director who had his

press conference. you stay in the spotlight. and the county was receiving scientific support from the state level. state epidemiologist and microbiologists were providing support to the can. the state epidemiologist a week after the news conference wrote, as for the data i've broken everything out in every correction i can possibly think intended to buy two tables by hand and i did that for all the times people ate and what they ate and everything. the turkey just isn't showing any statistically significant in so. talk about frustrating. following a telephone conference, he wrote in his notes, the turkey not significant specifically, and in parentheses yet. if you torture that enough they will admit to anything. so they were trying pretty hard. there were other problems as well. is hoping to get you another draft that we really need to review our reforms. my fear at this time to zip lock bags associated is actually

products are we different outbreak. i will spend serious time try to get his sorted out. then they did pfge testing on the to strengthen it was found in the plant and also the food. prison rape testing showed the two are different. that ended up in a draft report your clostridium perfringens showed the two samples were different. there's no genetic match meaning they didn't likely come from the same sort of blue when we look at the final report, that sentence had been deleted. there's also a reference in the final report that turkey can get a number of clostridium perfringens. and in the draft report there's another sense that said but the food isolate, the turkey, did not contain the clostridium perfringens gene and you need that for clostridium perfringens to cause illness. without it nobody gets sick. and 50% of us in this room are comparing the clostridium

perfringens in our body, it has to have the gene to make you get sick. it didn't. that sentence was deleted from the final report as well. so suddenly the conclusions that have been issued by the department were called into question. what also didn't end up in the final report was the fact that the local deli had also catered meals to a local news station. nobody had gotten sick. they also serve 300 people that day at the grocery store itself. the family members, wives, children, husbands and people who are working and actually making the food, nobody got sick. and investigated because early on to determine turkey must be the source, ignored 15 of the potluck items that were served at the church that day as was 100 food handlers, all volunteers. it were not interviewed and nobody collected samples or do any testing. at the warehouse facility night potluck -- potluck items were ignored.

food handlers were ignored and also ignored was the fact that the church, the warehouse for a 1.5 miles apart. some of the workers at the warehouse were also volunteers at the church. the state epidemiologist when i took her deposition said despite the counties attend comic it didn't appear to her to focus the attention on the turkey. she personally thought this was a neural bio outbreak. you can imagine her surprise when i headed to her in that sheet showing the plaintiff in this case had indeed tested positive for knurled virus. she started crying. the case was probably dismiss. there's more examples throughout the last decade that we have stumbled across where mistakes can and do happen. so, some final thoughts. in today's inquirer we, of course, on lawyers, both sides of from our perspective we need as many tools as possible to show that a product was not at

all. if we can't show it wasn't our product, i personally need to convince the media, the public and a jury that we were able to find and fix the problem, that our food safety system is working. if we can do that i can stand up in front of you and say i'm proudly defending the hard-working americans who feed you. thank you. [applause] >> well, thank you to our panelists for three really interesting and important presentations. i want to make sure we have enough time for questions from the audience. and also for our panelists, if you have questions or comments for each other, to come forward among each other. so, maybe we can start with an audience question and then certainly -- yes. [inaudible] >> regulation question, maybe the first bigger, everybody can

address, but i was really struck by the aid recall the involved the cost of farms in iowa because in doing research for a project a year or two ago about factory farming in iowa had come across an article that was maybe five or six years or even older about the environmental problems at the decoster farm operations in terms of discharging waste and polluting air and water. and i'm wondering whether any links around food production facilities especially with livestock that don't properly manage their manure outside the facility and then with the food safety issues are inside. and might make sense that some kind of a link where if people are cited for discharging the newer illegally in the sort environmental regulatory context, to then red flag that facility for infection by fda?

for what's going inside that might impact food safety. >> so, so thank you. you know, i want to give fred and john a response -- a chance to respond. i was at the agency during a, i did work on that particular project. so what i say is not related to any personal knowledge to the case. but there is work that has been done by physician epidemiologist, and i'm thinking of a doctor in johns hopkins school of public health. and he has done some studies and looked at environmental contamination and the possible consequences or threat to human health around, and i would consider this a species of concentrated animal facility, a large poultry house. people who are real connoisseurs others might draw a distinction but i will lump them together.

so i think there's good public health research that suggest there is a link. now, getting to the second point though is there a link between house that -- outside of the point in the inside of the plant, i don't know that there's sort of a formal position on that. i think certainly the public health scientists i know, the bacteriologist i know, which suggests that there is because you've got ingress and egress, the direct link. and in the secondary link is down is a plant that is not taking care to conform to the environmental requirements may not be taking care of other requirements. it indicates indirect evidence to the lack attention. the final point is, one of the areas that fda has been working on very hard i think in the last

five years or so is to try to increase the web or expand the web of information on chicken pixels been doing more and more work or attempting to with the state health department. and part of that involves environmental health and that aspect of state health department will look at pics i think some of the agencies are becoming more attuned to but may not necessarily have a formal policy. >> i think that there is really, we are involved in that egg outbreak as well. i think there is indisputable connection between the environmental damage and the food safety harm that occurs,

occurs as a result, especially in the context of the animal waste. i mean, because this is the toxin. it might be organic but it is still a toxin that nonetheless. and when you have the proximity between a fecal matter and production, you're going to run into danger. look at the spinach outbreak. that was identified as basically, you know, you have wild boar, a wild boar traipsed through the food lot and it was adjacent to the spinach fields and then ran through the spinach. and that's how, and mixed it all together in this concentrated area where the brought the spinach, credit up, not grounded out but mixed it up and then it became a national thing. so you have basically fecal matter in close proximity to food always in danger. but you can't avoid it.

>> i agree with fred, that sanitation, sanitary conditions are critical. everybody in every state needs to make sure that we are messing circumstances like we saw with respect to the eggs. that does not involve any of my clients and are not involved in a particular outbreak, but i would also say that this theory about the wild boar has been fascinating to me because if it wasn't the wild boar, if it was some birds, migratory birds perhaps, or any other animal or any other condition of nature, that's just natural. and it demonstrates although perhaps at some level and at some point avoidable, but it demonstrates how difficult it can be in this industry to avoid the challenges. a far cry of course what we saw with respect to this case. >> one thing that i was

thinking, and i know that you all are the experts, but for regular people who don't know the information that you know, the first thing when i hear that peanut butter has salmonella in it, you first think how does poop eating peanut butter? how does prove get on let us? and i've had people ask me, my kids say how would let us become contaminated? you know, to hear the wild boar three i never did understand how would poop get on the spinach when you don't have animals involved in it. another thing that i was thinking, and this is just my ignorance, you know how you see the videos, the undercover to use better done by peter, could you use or any litigation the information that peta uncovers to show how animals are treated or how salmonella might get into some of the hamburgers at mcdonald's or anything? could you use something like that?

>> that's kind of the holy grail when you find somebody who's on the inside play. we were involved in the litigation, a wisteria outbreak in 2002 in which, for those of you who don't know, wisteria is probably the most virulent relatively rare pathogen, but in this particular case, what we did defined an insider in the plan was to look through worker's compensation records which were a matter of public record. because oftentimes worker's compensation injuries involving plant workers at meatpacking plant involved very disinfected workers who might be willing to talk to us who are no longer employed there, to try to find out what goes on. because when we get involved in outbreak is after the fact that it's long after the hard producing has been introduced into the plant or to the food product. so we are looking for somebody

to go back and i'm looking at the light from a long time ago. that's what we're trying to find, if someone with actual knowledge about what they did wrong, contrary to what their golden tongued plant says about what they're supposed to do. these are the people who are actually interesting we never change our uniforms or we never wash our hands, or that's a bunch of baloney. so yes we can find peta to our insider, that is hopeful. >> i will start by saying real quick, of course out of my clients would ever have any of those videos associated with the way they conduct their business, but i think that basically there has to be something that happens between a particular entity, that particular video and a causal connection with respect to the illness. or at least in time and proximity. and then to follow up on your question with respect to animals and spinach fields, 0157 can be shed by an animal through saliva

that is eating the plants, birds, there could be bird droppings and even a theory to the extent there's a small stream that overruns every once in a while and it is contaminated and it can contaminate the field. or perhaps let us can even pull back kerry up to the root system. so there's a lot of different mechanisms. >> i was just wondering, why as people do with the system every day, and assuming that no amount of regular this put in could ever get rid of all things, but probably not put you out of business, what more could the fda do for you? says you see the system not as litigators, but having seen this as a college litigation what more do you think the fda needs to be doing to keep the american food supply safe? >> you know, i can't speak for shawn, but to be honest we don't get involved in -- i mean, the

regulatory people and the litigants have a, there's a tension. we want to get as much access to planes come to the records, the government records. the government says you can't do that because then we're basically shields for litigation. we can't do our job. so there's always that tension about privacy versus proving causation versus policy issues involved. so i'm not sure, at least to my plaintiffs practice, i'm not sure that the fda or the usda will do much, if anything, that is going to materially affect what i do. except if i can get more access to the records and to people in a given case is almost impossible. >> i would just add, no, i think

representing industry and defending industry i will consider myself a safety advocate. i've been involved in cases where things have gone wrong. i've had a lot of exposure to different types of scenarios which can result in problems, and often share those stories with my client. and help them really helped themselves. and i think from the fda standpoint, you know, maybe not much more than it's already doing, i'm very encouraged by the new haccp regulation. i think he will take time but i think those will have a positive effect. but beyond that i think the real change is going to be driven by folks like fred and industry. to the extent that outbreaks cost companies a lot of money, it's bad publicity, there's brand damage. they don't want to be on the front of the "new york times." they will do what they can has best possible, limit those risks. when the large players like cosco's and wal-marts will be demanding more food safety from

their supplies i think that's where the real change will take place. >> any other questions? all right, it looks like we're finishing right on time. i want to thank our panelists and thank the audience. [applause] >> for great questions. thank you. >> before these guys go, you had an eventful panel and symposium to put it euphemistically, but you also, your ideas and expertise gained through. and everyone learned a lot but i can't imagine a better person from each particular field to be here. so we thank you. another hand for these three. [applause]

>> this afternoon to hosting a discussion on the future of national security forces of afghanistan. we will hear from the country's defense and interior ministers. live coverage giving it away just a couple of minutes. it is scheduled to start at noon eastern here on c-span2. until then, a preview of the winter meeting of the national governors association. >> this headline today" the headline is governors had to d.c., mines on the economy. james polman is joining us live on the phone from the politico.com -- james coleman who is jning us live o phon

this is a real exciting meeting for people who fall these meetings closely is joining us hohmann live on the phone from the politico. let me point out today that it is just the democratic governors at the white house. there will be a dinner for all of the invited governors on sunday. and a business meeting on monday. do you know who will be in attendance for those democratic governors and what specific job creation items are on the agenda? guest: there will be 14 governors have this session for the white house. it is not expected to delve too deeply into specifics. it is a way for a lot of democratic governors to endorse what they are doing to get the economy back on track, sort of a way for the 14 who will be here to express solidarity. you just mentioned the usa today

story. the two governors from the two largest states will not be there. but a lot of people are facing giant deficits back home. like connecticut and washington. those governors will be here and it is a chance to have solidarity with other credit -- other democrats. host: you write this morning that the gop is praising walker, but stop there. how so? guest: a lot of them are watching what he is doing in wisconsin, but not endorsing his confrontational approach. i looked at with 29 republican governors are doing and a lot of them are either testedly responding -- tepidly

responding or they are not endorsing what walker is doing. a lot of governors have decided it is not worth wasting the political capital fighting unions, as we have seen walker do in wisconsin when they are not responsible for that much of their budget to start with. in places like wyoming or alabama. host: you have said that they have not embraced the "politically risky," using your words, behavior. guest: right, they have not taken on the collective bargaining when they will not be able to take on that fight. -- arwin mnf-i. the governor of iowa, -- not going to be able to win that fight. the governor of iowa has said that he would like to change collective bargaining, but

democrats control the state senate. he is realistic in that he would not be able to win that fight, so why even started? -- start it? host: the last two years they received of to $105 billion in federal funds. that money will not be here this year. guest: and that is a huge problem. 25 new governors were elected this last november. while there are some partisan activities between the republicans and democrats, there are a lot of panels to talk about issues like this. if you talk to republican governors privately, they will of knowledge that stimulus money was clutch in helping them felder shortfalls -- fill their shortfalls in the last few years. they have used up half their rainy day fund and a lot of them have come into office