discussing how the public health system is set up in the U.S. Cover the following:? For the prevention of COVID-19, provide an analysis of how res

CHAPTER

83

3THE PROCESS OF HEALTH POLICYMAKING Learning Objectives

After reading this chapter, you should be able to

• appreciate some of the important frameworks and theories about policymaking;

• define the stages heuristic policymaking framework; • draw a schematic model of the phases of the policymaking process; • understand the relationship between the policymaking process and its

external environment; • discuss the agenda setting and development of legislation activities of

policy formulation; • discuss the designing, rulemaking, operating, and evaluating activities

of policy implementation; • discuss the modification phase of policymaking; • discuss how the phases of policymaking interact with one another; and • appreciate the political nature of policymaking.

W hether health policies take the form of laws, rules or regulations, implementation decisions, or judicial decisions, all policies are authoritative decisions made through a complex process. The most

important thing to understand about policymaking is that it is a decision- making process. This chapter describes this process. As we will see, with certain variations policies at the federal, state, and local levels of government are made through similar decision-making processes (Bovbjerg, Wiener, and Houseman 2003).

Having considered the context in which health policies are made in the previous chapter (in particular the structure and operations of policy markets), and having identified the demanders and suppliers who interact in these markets and the important operational aspects of these interactions, consideration of the intricate process through which public policies are made is now possible. The discussion begins in this chapter at the conceptual level and includes a schematic model of the core policymaking process; applied

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C o p y r i g h t 2 0 1 6 . H e a l t h A d m i n i s t r a t i o n P r e s s .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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H e a l t h P o l i c y m a k i n g i n t h e U n i t e d S t a t e s84

discussions of the component parts of the policymaking process follow in subsequent chapters.

Conceptual Frameworks and Theories of Policymaking

As a precursor to discussing any model of the public policymaking process, consideration of some of the important frameworks and theories that have guided inquiry about how the process works will be useful. Frameworks guide inquiry by organizing elements and relationships among elements that may lead to theory development (Ostrum, Cox, and Schlager 2014). Theories, which are more specific than frameworks, postulate testable relationships between variables (Walt et al. 2008).

Both frameworks and theories are useful devices, but it must be admitted at the outset that there is no universally agreed-upon framework or theory about how the public policymaking process works. Instead, there are many frameworks of and theories about the process (Sabatier and Weible 2014), each offering only a partial explanation of public policymaking. We will review some of the most important and enduring ones and select relevant and workable frameworks and theories around which to structure a model of the policymaking process.

Stages Heuristic The best known of the policymaking frameworks is the stages heuristic, which is attributable to early work by Lasswell (1956). The policymaking process model presented later in this chapter is heavily influenced by this framework. The framework essentially views policymaking as occurring in four stages: agenda setting, formulation, implementation, and evaluation. The framework has been legitimately criticized for oversimplifying reality but remains useful for thinking about the policymaking process.

Among alternatives to the stages heuristic, Walt and Gilson (1994) developed the policy triangle framework, which considers how actors, con- text, and processes interact to produce policy. Another framework, networks, evolved to help explain the way growing numbers of actors interact around policy issues (Sabatier and Weible 2014). Policy communities, described in Chapter 2, are simply tightly knit networks.

Multiple-Streams and Punctuated-Equilibrium Theories Theories, which as noted earlier are more focused than frameworks, have been developed to explain certain aspects of the policymaking process. Among the most important policymaking theories are Kingdon’s (2010)

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85C h a p t e r 3 : T h e P r o c e s s o f H e a l t h P o l i c y m a k i n g

multiple-streams theory and Baumgartner and Jones’s (1993) punctuated- equilibrium theory. The multiple-streams theory, which focuses on agenda setting, postulates that problems, possible solutions, and politics flow along in separate streams in our society. Sometimes the streams merge and the confluence creates a window of opportunity for government to engage in policymaking. The punctuated-equilibrium theory postulates that policy- making typically proceeds in small incremental steps that can be disrupted by bursts of rapid transformation. The enactment of Medicare and Med- icaid in 1965 and the passage of the Affordable Care Act (ACA) decades later are examples of the phenomenon of punctuated-equilibrium in the health domain.

A Core Model of the Public Policymaking Process

Incorporating some of the frameworks and theories noted previously and adding other components, we can diagram the complex and intricate process through which public policymaking occurs. Remember, the most important attribute of this process is that it is a decision-making process. Although such schematic models tend to be oversimplifications, they can accurately reflect the component parts of the process and their interrelationships. Exhibit 3.1 is a model of the public policymaking process in the United States. This model depicts the policymaking process as it occurs at federal, state, and local levels of government. We discuss the component parts of the model in the following sections and then in greater detail in subsequent chapters. As can be seen in the model, policymaking occurs in three interrelated and cyclical phases: formulation, implementation, and modification. Each of these phases of policy making at the federal level is described in the following sections.

Formulation Phase

The formulation phase of health policymaking is made up of two distinct and sequential parts: agenda setting and development of legislation. Each part involves a set of activities in which policymakers and those who would influence their decisions and actions engage. The formulation phase results in policy in the specific form of new public laws or the far more likely result of amendments to existing laws. In other phases of the process, policies emerge in the forms of rules and regulations and other implementation decisions; policies in the form of judicial decisions can emerge from throughout the entire process.

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H e a l t h P o l i c y m a k i n g i n t h e U n i t e d S t a t e s86

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87C h a p t e r 3 : T h e P r o c e s s o f H e a l t h P o l i c y m a k i n g

Agenda Setting The public laws or amendments pertaining to health are initiated by the inter- actions of diverse health-related problems, possible solutions, and dynamic political circumstances that relate to the problems and to their potential solutions. Before the policymaking process can progress, some mechanism must initiate the emergence of certain problem–solution combinations and their subsequent movement through the development-of-legislation process. In essence, this step is deciding what to make decisions about within the policymaking process.

At any given time, there are many problems or issues related to health. Many of them have possible solutions that are apparent to policymakers. Often these problems have alternative solutions, each of which has its sup- porters and detractors. Diverse political circumstances surround the actual problems and potential solutions. Agenda setting, a crucial initial step in the policymaking process, describes the ways in which particular combinations of problems, possible solutions, and political circumstances emerge and advance to the next stage. Agenda setting is discussed in depth in Chapter 5.

Development of Legislation Once a problem or issue that might be addressed through public policy rises to a prominent, possibly actionable place on the policy agenda—through the confluence of the problem’s identification, the existence of possible policy solutions, and the political circumstances surrounding the problem and its potential solutions—it can, but does not necessarily, proceed to the next point in the policy formulation phase, development of legislation. Kingdon (2010) describes the point at which problems, potential solutions to them, and political circumstances converge to stimulate legislation development as a window of opportunity (see Exhibit 3.1).

At this second step in policy formulation, policymakers propose spe- cific legislation. One can think of these proposals, or bills as they are techni- cally called, as hypothetical or unproven solutions to the problems they are intended to address. The proposals then go through carefully prescribed steps that can, but do not always, lead to policies in the form of new public laws or, more often, amendments to previously enacted laws. The steps in the develop- ment of legislation, also called the legislative process, are listed in Exhibit 3.2.

Only a small fraction of the problems, health-related or otherwise, that might be addressed through public policy ever emerge from agenda setting with sufficient impetus to advance them to legislation development. And even when they do, only some of the attempts to enact legislation are success- ful. The path of legislation—that is, of policy in the form of new public laws or amendments to existing laws—can be long and arduous (Hacker 1997). The details of this path that pertain to agenda setting are described more fully

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H e a l t h P o l i c y m a k i n g i n t h e U n i t e d S t a t e s88

Introduction

Anyone may draft a bill; however, only members of Congress can introduce legis- lation, and by doing so become the sponsor(s). There are four basic types of leg- islation: bills, joint resolutions, concurrent resolutions, and simple resolutions. The official legislative process begins when a bill or resolution is numbered— H.R. signifies a House bill and S. a Senate bill—referred to a committee and printed by the Government Printing Office.

Step 1. Referral to Committee

With few exceptions, bills are referred to standing committees in the House or Senate according to carefully delineated rules of procedure.

Step 2. Committee Action

When a bill reaches a committee it is placed on the committee’s calendar. A bill can be referred to a subcommittee or considered by the committee as a whole. At this point, a bill is examined carefully and its chances for passage are deter- mined. The committee not acting on the bill is the equivalent of killing it.

Step 3. Subcommittee Review

Often, bills are referred to a subcommittee for study and hearings. Hearings provide the opportunity to put on the record the views of the executive branch, experts, other public officials, supporters and opponents of the legislation. Testi- mony can be given in person or submitted as a written statement.

Step 4. Mark Up

When the hearings are completed, the subcommittee may meet to “mark up” the bill, that is, make changes and amendments prior to recommending the bill to the full committee. If a subcommittee votes not to report legislation to the full committee, the bill dies.

Step 5. Committee Action to Report a Bill

After receiving a subcommittee’s report on a bill, the full committee can conduct further study and hearings, or it can vote on the subcommittee’s recommenda- tions and any proposed amendments. The full committee then votes on its rec- ommendation to the House or Senate. This procedure is called “ordering a bill reported.”

Step 6. Publication of a Written Report

After a committee votes to have a bill reported, the committee chairman instructs staff to prepare a written report on the bill. This report describes the intent and scope of the legislation, impact on existing laws and programs, posi- tion of the executive branch, and views of dissenting members of the committee.

Step 7. Scheduling Floor Action

After a bill is reported back to the chamber where it originated, it is placed in chronological order on the calendar. In the House there are several different

EXHIBIT 3.2 The

Development of Legislation or

the Legislative Process at the

Federal Level

(continued)

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89C h a p t e r 3 : T h e P r o c e s s o f H e a l t h P o l i c y m a k i n g

legislative calendars, and the Speaker and majority leader largely determine if, when, and in what order bills come up. In the Senate there is only one legislative calendar.

Step 8. Debate

When a bill reaches the floor of the House or Senate, there are rules or proce- dures governing the debate on legislation. These rules determine the conditions and amount of time allocated for general debate.

Step 9. Voting

After the debate and the approval of any amendments, the bill is passed or defeated by the members voting.

Step 10. Referral to Other Chamber

When a bill is passed by the House or the Senate, it is referred to the other chamber, where it usually follows the same route through committee and floor action. This chamber may approve the bill as received, reject it, ignore it, or change it.

Step 11. Conference Committee Action

If only minor changes are made to a bill by the other chamber, the legislation commonly goes back to the first chamber for concurrence. However, when the actions of the other chamber significantly alter the bill, a conference committee is formed to reconcile the differences between the House and Senate versions. If the conferees are unable to reach agreement, the legislation dies. If agreement is reached, a conference report is prepared describing the committee members’ recommendations for changes. Both the House and the Senate must approve of the conference report.

Step 12. Final Actions

After a bill has been approved by the House and Senate in identical form, it is sent to the President. If the President approves of the legislation he/she signs it and it becomes law. Or, the President can take no action for ten days, while Con- gress is in session, and it automatically becomes law. If the President opposes the bill he/she can veto it; or, if he/she takes no action after the Congress has adjourned its second session, it is a “pocket veto” and the legislation dies.

Step 13. Overriding a Veto

If the President vetoes a bill, Congress may attempt to “override the veto.” To override the veto requires a two-thirds roll call vote of the members who are present in sufficient numbers for a quorum. See more at congress.org/ advocacy-101/the-legislative-process.

Source: Congress.org (2014). Reprinted with permission.

EXHIBIT 3.2 The Development of Legislation or the Legislative Process at the Federal Level (continued)

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H e a l t h P o l i c y m a k i n g i n t h e U n i t e d S t a t e s90

in Chapter 5, and those that pertain to the development of legislation are discussed more fully in Chapter 6.

Implementation Phase

When the formulation phase of policymaking yields a new or amended public law, enactment of legislation marks a transition from formulation to imple- mentation, although the boundary between the two phases is porous. The bridge connecting formulation and implementation in the center of Exhibit 3.1 is intentionally shown as a two-way connector.

The implementation phase of policymaking, including a discussion of the responsibility for implementation, is described here and in more depth in Chapters 7 and 8. As can be seen in Exhibit 3.1, policy implementation unfolds in a series of interrelated steps: designing, rulemaking, operating, and evaluating. These steps are briefly described in this section. First, however, a few words about responsibility for implementation.

Implementing organizations, primarily the departments and agencies in the executive branch of federal and state governments, are established and maintained and the people within them employed to carry out the intent of public laws as enacted by the legislative branch. Legislators rely on implementers to bring their legislation to life. Thus, the relationship between those who formulate policies and those who implement them is symbiotic.

In short, health policies must be implemented effectively if they are to affect the determinants of health. Otherwise, policies are only so much paper and rhetoric. An implemented law can change the physical or social environment in which people live and work, affect their behavior and even their biology, and an implemented law can certainly influence the availability and accessibility of health services.

The implementation phase of public policymaking involves managing human, financial, and other resources in ways that facilitate achievement of the goals and objectives embodied in enacted legislation. Policy implementa- tion is primarily a management undertaking. That is, policy implementation in its essence is the use of resources to pursue the objectives inherent in public laws. This type of management is typically called public administration (Abramson and Lawrence 2014).

Depending on the scope of policies being implemented, the manage- rial tasks involved can be simple and straightforward, or they can require mas- sive effort. For example, President Johnson, who played a major role in both formulation and implementation of Medicare, observed that implementing the Medicare program represented “the largest managerial effort the nation

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91C h a p t e r 3 : T h e P r o c e s s o f H e a l t h P o l i c y m a k i n g

[had] undertaken since the Normandy invasion” (Iglehart 1992, 1468). More recently, implementation of the ACA is proving to be a monumental management undertaking (Jacobs and Skocpol 2012; Thompson 2013). No matter the scale, however, the implementation of public laws always involves the set of interrelated activities shown in Exhibit 3.1: designing, rulemaking, operating, and evaluating.

Designing The relationship among the activities in the implementation phase is essen- tially cyclical and interactive. As shown in Exhibit 3.1, implementation begins with designing, which entails establishing the working agenda of an implementing organization (e.g., the Food and Drug Administration), planning how to accomplish the work, and organizing the agency to per- form the work. This activity is rather straightforward management, which is defined as “the process, composed of interrelated social and technical functions and activities, occurring within a formal organizational setting for the purpose of helping establish objectives and accomplishing the predeter- mined objectives through the use of human and other resources” (Longest and Darr 2014, 255).

More detail about the designing activity is provided in Chapter 8, but suffice to say here that this implementation activity entails the traditional management functions: planning, organizing, staffing, directing (motivating, leading, and communicating), controlling, and decision making (Daft 2014). These interrelated functions, including how decision making intertwines with all the other functions, are shown and briefly described in Exhibit 3.3.

Rulemaking Again following Exhibit 3.1, the next step in the implementation phase of policymaking is rulemaking. Rules, which may also be called regulations, are specific detailed directives developed by implementing organizations in the executive branch. Rules are themselves policies because they are authoritative decisions made in the executive branch to implement laws and amendments. Recall from Chapter 1 that authoritative decisions refer to those made any- where within the three branches of government that are under the legitimate purview (i.e., within the official roles, responsibilities, and authorities) of those making the decisions. For example, rules promulgated to implement a law are as much policies as are the laws they support. Similarly, operational decisions made by implementing organizations, to the extent that they require or influence particular behaviors, actions, or decisions by others, are policies. Furthermore, decisions made in the judicial branch regarding the applicability of laws to specific situations or the appropriateness of the actions of implementing organizations are policies. By definition, policies

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