Health Care Reform Implementation Update

On Monday, November 29, the Senate failed to repeal the new tax reporting rules of the Patient Protection and Affordable Care Act (PPACA) even though both Democrats and Republicans agreed they needed to be abandoned to prevent businesses from being overwhelmed with undue tax paperwork. Caught in a partisan dispute over how to proceed with eliminating new tax reporting rules, the Senate twice was unable to reach an agreed-upon threshold of 67 votes to eliminate the provision. Senate officials said they expected that another vote on repeal would come soon.

On Monday, November 22, Judge David Dowd of the U.S. District Court for the Northern District of Ohio issued a split ruling in a case brought by the conservative U.S. Citizens Association. Dowd rejected three claims but agreed to hear arguments that the law’s individual mandate — the requirement that people buy insurance — violates the Constitution’s Commerce Clause. In his ruling, Dowd made clear that he expects the Supreme Court to get involved. This decision marks the third time a legal challenge to the Patient Protection and Affordable Care Act has been allowed to go forward.

The New York Times reported this week (November 26) that officials are bracing for the possibility that Judge Henry E. Hudson of Federal District Court in Richmond may rule that the Affordable Care Act is unconstitutional. Judge Hudson has promised to rule by the end of the year on the constitutionality of the law’s individual mandate.

Rep. Joe Barton (R-Texas) wrote to CMS Administrator Donald Berwick requesting that he brief the House Energy and Commerce Committee before the end of the lame-duck session. In his letter, Rep. Barton said he was glad to see Berwick testify before the Senate Finance Committee, but his time there was too short.

In a different letter to Dr. Berwick this week, The Medicare Payment Advisory Commission (MedPAC) argued that accountable care organizations (ACOs) should face financial risk if doctors, hospitals or other providers fail to manage quality and costs. MedPAC suggested that Medicare create a "two-sided" risk, one that offers a bonus for achieving cost and quality goals, but also “leaves providers on the hook if costs exceed targets.” The general idea would be for the ACOs to bear some risk for the costs of patients they treat.

The Centers for Medicare & Medicaid Services (CMS) will reduce cardiac PET (positron emission tomography is a form of diagnostic imagining) reimbursement by 23 percent, effective January 1, 2011, as part of its final rule for the Hospital Outpatient Prospective Payment System (HOPPS) and Ambulatory Surgical Center services.

As the National Committee for Quality Assurance (NCQA) determines precisely how a well-run accountable care organization ought to function, the National Association of Chain Drug Stores is urging policymakers to remember the role of pharmacists in care coordination and cost control. In comments to the NCQA, the association said model ACOs should include pharmacists on its list of key stakeholders, governing body members and patient-care teams.

Congress agreed Monday (November 29) to a one-month delay in Medicare payment cuts to doctors, giving a short-term reprieve to a looming crisis over treatment of the nation’s elderly. In approving the bill passed by the Senate earlier this month, Congress postponed a 23 percent cut in doctors’ pay scheduled to take effect December 1.

The Wall Street Journal reports this week that hospitals and doctors around the country, spurred by incentives in the federal health-overhaul law, are beginning to create new entities that aim to provide more efficient health care. Some critics are raising concerns that the new organizations may risk increasing costs, particularly when they involve hospitals bulking up through mergers, acquiring doctor practices, or hiring more doctors to better coordinate care.

Republicans have been fighting the PPACA in the court, with congressional actions to withhold funding, and by engaging their allies in the states to resist its implementation. They are now planning to use another tool to prevent the implementation of PPACA: the rarely used Congressional Review Act (CRA), a 1996 law that gives Congress a narrow window in which to kill a regulation after it’s been proposed by an agency.

Rep. Gary Ackerman (D-NY) is offering a series of six bills that would roll back key portions of the law, including prohibitions on barring pre-existing conditions, lifetime insurance limits, expanded dependant coverage, and banning the practice of insurance companies dropping sick customers. Ackerman is calling the package of repeals HIPA-CRIT (Health Insurance Protects America – Can’t Repeal It). Rep. Ackerman favors health reform and says he is offering these bills to give Republicans a chance to do what they promised. He suggested that Republicans would not dare to vote to do away with them despite their campaign promises. 

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