Washington Watch

Carter L. Alleman, J.D.

House Panel Markup Scrapped Over Health Care Liability Bill

The House Judiciary Committee scrapped its markup of a bill to overhaul the medical liability system, the latest in a series of Republican proposals to cut mandatory spending that House GOP leaders hoped might ease passage of a fiscal 2017 budget resolution.

The panel adjourned midway through consideration of a measure (HR 4771) from Rep. Trent Franks, R-Ariz., that would seek to limit jury awards by setting conditions for lawsuits arising from health care liability claims. Several conservative members on the committee had already spoken out against the legislation, potentially threatening approval of the bill.

The bill would place a $250,000 cap on non-economic damages and create new guidelines for awarding punitive damages, among other changes.After ticking off a number of states that specifically bar any limitation on punitive damages, Hank Johnson, D-Ga., offered an amendment to include language that the legislation would not preempt any applicable provisions in a state’s constitution.

MedPAC Urges Changes with Insurer-Run Medicare, 340B Drug Plan

Advisers to Congress recommended lawmakers take on several powerful health industries by reshaping Medicare policies, including ones that may let insurers and rehabilitation hospitals gain excess payments by depicting their elderly and disabled patients as being more ill than they actually are.

The Medicare Payment Advisory Commission (MedPAC) released its annual March report to Congress, a document closely watched by lawmakers and officials who oversee the program. Medicare, one of the federal government's biggest expenses with outlays topping $600 billion a year, serves more than 53 million people. MedPAC is an influential source of nonpartisan analysis, with commissioners from academic and industry backgrounds.

MedPAC’s earlier public deliberations on the recommendations in the March report drew the ire of hospital and physician groups due to a proposed change in the use of savings from the 340B discount drug program. The panel also recommended keeping payments flat next year for six services with more than $75 billion in combined annual reimbursements from the traditional Medicare program: long-term care hospitals, hospice, ambulatory surgical centers, skilled nursing facilities, home health care and inpatient rehabilitation centers.
The recommendations that MedPAC is highlighting from its March report include proposals that would affect:

- Inpatient rehabilitation facilities: Congress should direct the U.S. Department of Health and Human Services (HHS) to analyze the coding used to set payments for people treated in specialty hospitals known as inpatient rehabilitation facilities. A new MedPAC analysis raised questions about how patients are evaluated by some of the rehabilitation centers. Some centers with high Medicare profit margins appear to have a pattern of categorizing patients being admitted as being more functionally disabled than another similar treatment center might.

- 340B drugs: Congress should direct HHS to reduce Medicare payments for drugs purchased by hospitals through the 340B discount program by 10 percent of the average sales price. Savings from this program, which can shave a third off the cost of medicines, would go to a pool to pay for uncompensated care. Hospitals that participate in the program have opposed bids to put conditions on how they can apply savings. Policy analysts see the deep discounts available through the 340B program as a driver in hospitals' acquisitions of private medical practices, which in turn raises costs for Medicare. The program pays for more services delivered in what are classified as hospital outpatient departments than it would if they were provided in a private medical office.

- Medicare Advantage plans: Congress should direct HHS to develop a risk adjustment model that uses two years of data from traditional government-run Medicare and from the insurer-run Advantage plans, seeking to account for differences in the assessment of patients’ health in bill coding.

Nearly 5 Million Enrollees in Exchanges Are New Customers, Says HHS

 
Nearly 5 million new customers signed up for insurance under the exchanges established by the 2010 health care law, the U.S. Department of Health and Human Services (HHS) said Friday.

A final report on the third open enrollment period shows that a total of 12.7 million people either signed up or automatically renewed their health care plans for 2016, with 4.9 million of those individuals being new customers. About 76 percent of enrollees got covered in the 38 states that use the healthcare.gov website, while 24 percent are signed up through the state-based marketplaces. In the healthcare.gov states, the average value of a tax credit is $290 per person per month.

The administration touted figures that illustrate 3.5 million people who are signed up for coverage are between the ages of 18 and 34 – a key demographic to help sustain the health law. Among new enrollees, 33 percent are in that age range, up slightly from 31 percent the previous year. Health insurers would prefer a higher percentage of customers to be young adults, but HHS maintained in a press release that the “overall percentage of plan selections for those ages remains stable.”

The report also highlighted statistics that show existing consumers who switched plans in 2016 saved an average of $40 per month, and that new customers signed up earlier this year compared to previous years.

House Prepares to Pass Medicaid Fraud Bill

The House passed a measure that supporters say would protect state Medicaid programs from fraud.

The bill (HR 3716) would require states and Medicaid managed care plans to identify and submit to the U.S. Department of Health and Human Services (HHS) Secretary the name, type and specialty of providers terminated from Medicare, a state's Medicaid or Children's Health Insurance Program (CHIP).

Rep. Larry Bucshon, R-Ind., the bill's sponsor, said the Health and Human Services Department's inspector general found that 12 percent of providers terminated for cause from a state Medicaid program had continued participation in another state's program for as long as two years after the initial termination.

The administration said it supports passage because the bill would improve program integrity for Medicaid and CHIP. The bill would improve "the ability of States to identify health care providers who have been terminated from participating in Medicare or in another State's Medicaid or CHIP program," the White House said in a statement of administration policy.

The House approved a modified manager's amendment by Rep. Larry Bucshon, R-Ind., that would give states until July 1, 2018, to comply with many of the bill's provisions.

It also would require the HHS’s inspector general to report to Congress by March 31, 2020, with an assessment of the extent to which providers terminated for fraud are terminated from participation in all state plans.

Under the rule, the House was considering a version of the bill that includes provisions of a measure (HR 3821) by Rep. Chris Collins, R-N.Y., to require state Medicaid programs that operate fee-for-service or primary care case management programs to publish and periodically update an electronic directory of participating providers.

New Proposed Rule for Opioid Abuse

The U.S. Department of Health and Human Services (HHS) published a proposed rule to expand access to buprenorphine, one of three medications currently approved by the Food and Drug Administration (FDA) for treatment of opioid dependence through medication-assisted treatment (MAT). The Notice of Proposed Rulemaking (NPRM), entitled Medication-Assisted Treatment for Opioid Use Disorders: Increasing the Buprenorphine Patient Limit, will be open for comment for 60 days starting Wednesday, March 30, 2016.

Major proposed changes include:

• The proposed rule would revise the existing patient limit of 100 patients to allow qualified practitioners to treat up to 200 patients.  To be eligible, practitioners must have an active waiver to treat up to 100 patients for one year and either: 1) possess subspecialty board certification in addiction medicine or addiction psychiatry or 2) practice in a qualified practice setting, as defined in the NPRM.

• Practitioners seeking the higher patient limit must attest that they will: adhere to evidence‐ based treatment guidelines, provide patients with or connect patients to necessary behavioral health services, provide appropriate releases of information to permit care coordination, use patient data to inform the improvement of outcomes,  adhere to a diversion control plan, consider how to assure continuous access to care in the event of practitioner incapacity or an emergency situation, and notify patients in the event that a request for the higher limit is not renewed. Practitioners must also reaffirm their eligibility every three years.

• Additionally, during emergency situations likely to exacerbate or be exacerbated by untreated substance use disorder, (e.g., natural or human‐caused disaster, practitioner incapacity, or a local disease outbreak associated with drug use), practitioners with a 100‐patient limit in good standing may be allowed the higher limit for up to six months.

Graduate Medical Education Bill Introduced in the House

Representative Kathy Castor (D-Fla.) introduced the Training Tomorrow’s Doctors Today Act, which would provide federal support to help train an additional 3,000 resident physicians a year while introducing accountability and transparency initiatives for institutions receiving Medicare funding for physician training.

H.R. 4774 would modestly lift the 20-year freeze on Medicare support for a share of residency training costs. The proposal also would establish transparency and accountability measures, consistent with recommendations from the Medicare Payment Advisory Commission and other national advisory bodies, to demonstrate the extent that resident training programs are focusing on priorities that improve patient care and population health.

Specifically, the legislation would direct the U.S. Department of Health and Human Services to work with medical education stakeholders to establish patient care performance standards that measure the extent of training: taking place in inter-professional and multidisciplinary teams; taking place in a variety of sites and settings such as community health centers; using the most advanced health information technology; and educating future physicians about the relative cost and value of diagnostic and treatment options. Additionally, the patient care priority measures must be endorsed by accrediting organizations like the Accreditation Council for Graduate Medical Education or the American Osteopathic Association.

Some Hospitals Face Risks in Medicare Hip-Knee Test, Study Says

Many hospitals are not prepared for the Friday start of a major Medicare effort to tie future payments to judgments about the quality and cost of care delivered in knee and hip replacements, a study indicates.

Avalere Health, a consulting group, released a paper in which it estimated that 60 percent of the hospitals drafted into Medicare’s Comprehensive Care for Joint Replacement model may face penalties, based on an examination of how their costs now compare to other hospitals. This knee-and-hip program marks a departure from Medicare’s past approach of recruiting volunteers for payment tests. Instead, Medicare has mandated that about 800 hospitals in 67 selected regions of the country participate in this test, which will dole out financial rewards and punishments based on how well people fare after surgery.

The rules by the Centers for Medicare and Medicaid Services (CMS) may skew the participants to include more hospitals that have been so far been timid about trying ways to better coordinate patient care after treatments. CMS spared from the hip-and-knee program certain hospitals that already participate in another of its payment tests, the Bundled Payments for Care Improvement model.

During the first year, which starts Friday, the program will not impose penalties, only potential rewards, based on judgments about performance. The program runs through the end of 2020. Medicare spends about $7 billion a year on hip and knee replacements. CMS said last year that it anticipates saving Medicare a total of $343 million from the program, with some hospitals standing to gain and others to lose. The judgments will be based in part on how well patients fare from the time of their admission to 90 days following their discharge.

Rep. Tom Price, R-Ga., is seeking to delay the start of the hip-and-knee test. He on March 23 introduced a bill (HR 4848) that would hold off the implementation until 2018. He so far has drawn one cosponsor, Rep. David Scott, D-Ga.

The hip-and-knee test program represents an effort by CMS to jumpstart efforts to better coordinate the care of people on Medicare after many kinds of surgeries and major illnesses, Bentley said.

Treatment after an injury or illness, known as post-acute care, represents a roughly $60 billion annual expense for Medicare. Lawmakers have mulled for some year show to restructure the fragmented approach to post-hospital care, with different kinds of nursing centers often receiving higher pay for similar treatment. People on Medicare and their families often face stressful choices about where someone should go for post-hospital care, as there often is little information available to weight potential benefits and drawbacks of use treatments delivered at home compared with those provided in skilled nursing and specialty inpatient rehabilitation facilities.