Analyzing Trump’s Health Care Negotiations

Notes on Negotiation
By Marty Latz, Latz Negotiation Institute

President Donald Trump has called himself a “really great negotiator.” Let’s evaluate his first significant presidential negotiation effort – health care reform with the U.S. House of Representatives.

Three quick caveats to start:
• It’s essential to use an objective research-based method to truly evaluate what occurred, rather than the hyper-partisan approach that seems to dominate current political analyses. The Five Golden Rules of Negotiation will serve as our framework.
• While these negotiations were extensively reported, some of what occurred was private and beyond the scope of our knowledge at this time; and
• These negotiations were simply the first step of a multi-step legislative/negotiation process required to change the law. U.S. Senate approval would have been the next step. And had the Senate made changes, the different versions would have required reconciliation and further Congressional approval before a presidential signature.

While the Five Golden Rules provide a comprehensive framework, many of the issues here can be attributed to how Pres. Trump implemented Golden Rule One: Information is Power – So Get It!

As regular readers here know, the first step to effective negotiating is getting sufficient information to set realistic and achievable goals. Then you must design a comprehensive strategy to accomplish them.

Pres. Trump repeatedly stated his healthcare goals on the campaign and after becoming president – repeal and replace Obamacare with better coverage, lower premiums, and no one loses their insurance.

What does this tell us about Pres. Trump’s implementation of Golden Rule One in the first step of this legislative process?

1. Trump Publicly Set Unrealistic and Unachievable Goals
No proposal evaluated by the House even came close to achieving his goals. The Congressional Budget Office, a non-partisan expert body with a Republican-appointed head, estimated the first House proposal would cause 24 million Americans to lose coverage. Subsequent proposals eliminated more and more health care benefits without adding coverage.

Bottom line – Pres. Trump’s repeatedly stated goals were unrealistic and unachievable with the proposals on the table in the House. His overall strategy, which would have required Senate approval, was also unclear and unspecified. How, if at all, did he propose to achieve his goals? No one really knew, including the House members whose votes he needed.

2. Trump Failed to Understand the Interconnected Complexity of Healthcare
Based on Trump’s comment that “[n]obody knew healthcare could be so complicated” and the reporting of his actual negotiations with House Republicans, Pres. Trump does not really have great knowledge and understanding of healthcare policy. Nor does he truly appreciate the complexities of how these elements work together.

Of course, presidents don’t need to be detailed policy experts to negotiate great deals, and regularly delegate policy details to others. But it’s crucial to be able to substantively engage in a back-and-forth discussion about significant issues. An inability to do so even at a high level will be detrimental to achieving negotiation success.

For example, Pres. Trump near the end of the negotiations offered to eliminate “essential health benefits” like requiring insurance to cover pregnancy and doctor’s visits. He did this in an effort to pick up votes from members of the House Republicans’ “Freedom Caucus,” who favored eliminating these benefits.

But offering this without also eliminating the requirement to cover pre-existing conditions could have led to a collapse of the insurance markets. Expert House members knew this. So giving in on the benefits issue actually made it less appealing to some of these members, not more. And by doing this, he also lost the votes of some moderate House Republicans, who liked those provisions.

3. Trump Overlooked Key Players’ Interests and Motivations
Pres. Trump overestimated the loyalty interests of House Freedom Caucus Republicans. He apparently believed that Republican team loyalty and getting anything passed would trump their interests in getting a bill that lowers premiums and taxes, lessens regulation, minimizes governmental involvement in healthcare, etc.

But a cursory review of these Freedom Caucus members’ history of Republican loyalty would have raised serious questions of the efficacy of this strategy. After all, these were the same members who shut down the government several years ago over the objections of most mainstream Republicans.

Former Republican Speaker John Boehner was even forced out by these same members. Loyalty and taking one for the team is not really in their playbook.

4. Trump Failed to Build Coalitions
Pres. Trump might have been able to get sufficient House Republican votes if he had built up public support for the bill’s major provisions and built coalitions among the involved Republican interest groups.

This could have led those Freedom Caucus members to believe that their constituents in safe Republican districts would have been better off with the final bill and/or would have used this issue to vote against them in two years. This would have directly addressed what many believe to be the most crucial interest of any politician – survival interest in re-election.

But the bill and its provisions, according to polling, only had a 17% approval rating from the public. And almost every major interest group, from the conservative Koch brothers to doctors to every liberal group, opposed it with many spending millions on ads trashing it.

Latz’s Lesson: Information is power. Pres. Trump did not have it or get it.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Despite Late Filing, COA decides Father’s Appeal on Merits

Family Law Case Review

Case: Charles Cannon v. Kristy A. Caldwell
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Despite Father filing his notice of appeal nearly one month late, the trial court’s modification of Father’s child support obligation was so manifestly unjust as to provide a compelling reason for the Court of Appeals to decide Father’s appeal on the merits.

HELD: The trial court’s child support order violated the Indiana Child Support Guidelines because it included in Father’s income his Social Security Income (“SSI”), even though SSI – a means-tested public assistance program – is excluded from the Guidelines’ definition of gross weekly income.

*The Court’s opinion refers to Father’s SSI benefit as “Social Security Income,” but “Supplemental Security Income” may have been intended.

FACTS AND PROCEDURAL HISTORY:  
Mother and Father divorced in 2011, pursuant to which Father was ordered to pay child support of $20/wk for two minor children. The children also received $93 per month, each, as a derivative benefit of Father’s Social Security Disability (“SSD”).  Father later became ineligible for SSD, which caused the children to stop receiving their $93/mo ancillary benefit. Father did, however, begin receiving SSI of $773 per month.  Mother filed a petition to modify child support.

The trial court held a hearing, with both parties pro se, which was conducted in summary fashion and in chambers. After the hearing, the trial court increased Father’s child support obligation to $35/wk.  Father filed a motion to reconsider and, later, his tardy notice of appeal.

Most of the Court’s opinion concerns the decision to accept Father’s tardy appeal due to “extraordinarily compelling reasons.” Having decided to entertain the case on its merits, the Court reversed the trial court’s modification order. “[T]he Indiana Child Support Guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation.”

The matter was reversed and remanded for further consideration, and a determination of whether a modification is appropriate without including Father’s SSI benefit as his “income.”  

To view the text of this opinion in its entirety, click here: Charles Cannon v. Kristy A. Caldwell

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Trial Court Did Not Err in Finding that Father was Voluntarily Underemployed, but Erred when Determining How Father’s Income Should be Imputed

Family Law Case Review

Case: Mark H. Miller, II v. Leigh Anne Miller
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not err in finding that Father was voluntarily underemployed, but the trial court erred when it determined the amount to which Father’s income should be imputed without evidence of prevailing job opportunities and earning levels in the community.

DICTA: When determining an income amount to which a parent should be imputed, this opinion suggests that the trial court is required to consider evidence of all four of the following factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. Failing to consider all four of these factors appears to be reversible error.

FACTS AND PROCEDURAL HISTORY:
Mother and Father married in 1999 and had four children together. Mother had been the primary caregiver for the children, but she obtained full-time employment in late 2009, at the about the same time Father lost his job as an insurance agent. Thereafter, Father became the primary caregiver to the children. Mother and Father agreed that Father should return to school, so in 2010, he enrolled part-time at IUPUI.

In 2014, Mother filed a petition for dissolution. At the time of the parties’ 2016 final hearing, Father was still attending IUPUI part-time, but he was also working 15 hours per week which earned him $250/wk. The trial court found Father to be voluntarily underemployed, and imputed him to income of $600/wk for child support purposes. The trial court’s findings suggested the $600/wk amount was based upon Father’s income history as an insurance agent. Father appealed.

Father’s primary argument on appeal was that the finding of voluntary underemployment was erroneous because Father’s decision to return to college was made by agreement with Mother, and that Father should not be penalized for making the decision to return to school. The Court of Appeals rejected these arguments, focusing on the fact that, at the time Father returned to school part-time in 2010, he was also the children’s primary caregiver; since then, Father no longer had the caregiving responsibilities — yet Father continued to take classes on only a part-time basis. “A reasonable inference can be drawn that the time Father spent in his caretaking function is now available for other purposes, yet he is working only fifteen hours a week.”

However, the Court of Appeals agreed with Father that there was insufficient evidence to support the $600/wk amount to which the trial court imputed Father. Interestingly, the opinion suggests that evidence of a party’s abilities and income-earning history, without more, is inadequate on which to determine an imputation amount. Instead, the imputation amount should be determined from four factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. The matter was remanded for a hearing on all four factors.

To view the text of this opinion in its entirety, click here: Mark H. Miller, II v. Leigh Anne Miller

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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The Court of Appeals Remands for a New Consent Hearing, Noting Trial Court Erred by Denying Mother’s Due Process Rights.

Family Law Case Review

Case: SR v. MJ
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred by denying Mother her due process rights when, at the beginning of a hearing to determine whether Mother’s consent was required for an adoption of her child, the trial court did not afford Mother with her right to counsel, or to ensure that Mother was knowingly and voluntarily waiving same.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child together in 2009. Paternity was established, and orders were issued for custody, parenting time, and child support. Father was awarded custody. Mother apparently had a problematic relationship with alcohol that resulted in legal and other problems. There was some dispute about the amount of contact Mother had with Child thereafter.

In 2013, Father remarried Stepmother, who became the primary caretaker of Child. Stepmother later filed a petition to adopt Child, reciting that Mother’s consent was unnecessary due to Mother’s abandonment and failure to support. When Mother received notice of the adoption proceeding, she filed a pro se objection.

In 2015, the adoption court held a consent hearing. At the outset, Mother requested counsel. After inquiring as to Mother’s financial condition, the adoption court determined that Mother, who made $10/hr at one job and $7.50/hr at another, had sufficient income to pay for an attorney and therefore Mother had made a “voluntary choice” to proceed without counsel. The hearing proceeded. Stepmother presented her case, including testimony from Stepmother and Father. Mother made no cross-examination.

At some point during Mother’s case-in-chief and testimony, Stepmother expressed an objection that the trial court, from Stepmother’s perspective, was asking questions and participating in the hearing as though advocating for Mother. As a result, the court continued the hearing and appointed counsel for Mother.

The adoption court began the next hearing, at which Mother appeared with appointed counsel, by announcing that this was not a “new hearing,” but would pick up where the earlier hearing left off. Mother offered more of her own testimony.

After the hearing, the adoption court concluded that Mother’s consent was not necessary for the adoption, citing Mother’s insufficient contact with Child. The court later granted Stepmother’s adoption as in the best interests of Child. Mother appealed.

The Court of Appeals noted that a parent whose parental rights are subject to termination in an adoption proceeding has three rights: (1) the right to be represented by counsel; (2) the right to have counsel provided if the parent cannot afford counsel; and (3) the right to be informed of the first two rights.

The Court of Appeals disagreed that Mother had voluntarily proceeded without counsel, as she requested counsel as soon as she learned that court-appointed counsel was a possibility. And, despite finding Mother was able to afford counsel, the trial court did not afford Mother an opportunity to acquire counsel or encourage her to do so. The adoption order was reversed and remanded for a new consent hearing, for which Mother should have counsel for its entirety, absent a knowing and voluntarily waiver by Mother of that right.

To view the text of this opinion in its entirety, click here: SR v. MJ

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Blog, Family Law Case Review, News0 Comments