February 2010

Senate Approves Legislation to Stall Physician Pay Cuts for 5 Years

Late last week, the Senate passed a resolution that could avert the scheduled 21.2 percent sustainable growth rate (SGR) cuts in Medicare payments to physicians scheduled for March 1, 2010. The legislation would further avoid cuts for the next five years.

In order to avoid having to find the money to pay for the 5-year fix, the legislation would raise the national deficit, and provide an exception to the "pay-as-you go" (PAYGO) budgetary rules for any new spending. PAYGO rules state that any new spending would have to be offset by spending cuts or tax increases. Providing a PAYGO exception for the SGR would mean that the estimated cost of $82 billion for the 5-year fix would not have to be offset in spending cuts or additional revenue. The House of Representatives is expected to take up the resolution this week.

Although stakeholders support avoiding the physician pay cut, they continue to advocate for a permanent repeal of the SGR that would provide a permanent solution to this issue. AMDA and many other societies, including the AMA, continue to advocate for a permanent repeal of the SGR.

Federal Budget

President Obama unveiled his Fiscal Year 2011 federal budget this week. Here are some health care highlights.

Medicare
While passage of health insurance reform is assumed for budget purposes, the Medicare baseline does not assume enactment of the Medicare provisions included in reform legislation. The Administration’s baseline is built on a “current policy” approach with respect to the Medicare physician fee schedule. That is, the Administration baseline does not assume that the scheduled physician fee cuts will take place. Rather, it assumes a zero update to physician fees indefinitely estimates the cost of blocking scheduled SGR-cuts over the next 10-years at $371 billion.

Access to, and Quality of, Health Care in Rural Areas.  The budget includes $79 million for an initiative to strengthen regional and local partnerships among rural health care providers, increase the number of health care providers in rural areas, and improve the performance and financial stability of rural hospitals.

Identify Ways to Improve Health Care Services for Seniors and People with Disabilities. The budget includes new Medicare and Medicaid demonstration projects that evaluate reforms to provide higher quality care at lower costs, improve beneficiary education and understanding of benefits offered, and better align provider payments with costs and outcomes.  Special emphasis will be placed on demonstrations that improve care coordination for beneficiaries with chronic conditions, that better integrate Medicare and Medicaid benefits for beneficiaries in both programs, and that provide higher value for dollars spent. 

Increase the Number of Primary Health Care Providers.  The budget invests $169 million in the National Health Service Corps (NHSC) to place providers in medically underserved areas to improve access to needed health care services.  Under the NHSC, primary health professionals such as physicians, nurse practitioners, and dentists agree to serve in a medically underserved community in exchange for having a portion of their student loans paid off.  In 2011, the requested increase will add nearly 400 NHSC clinicians to the more than 8,100 that will be providing essential primary and preventive care services in health care facilities across the country.

Fight Waste and Abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP).  This budget puts forward a set of proposals to strengthen Medicare, Medicaid, and CHIP program integrity efforts, including proposals aimed at preventing fraud and abuse before they occur, detecting it as early as possible when it does occur, and vigorously enforcing all penalties and recourses available when fraud is identified.  It proposes $250 million in additional resources that, among other things, will help expand the Health Care Fraud Prevention & Enforcement Action Team (HEAT) initiative, a joint effort by the Departments of Health and Human Services and Justice.  As a result, the Administration will be better able to minimize inappropriate payments, close loopholes, and provide greater value for beneficiaries and taxpayers.

Increase Investment in Patient-Centered Health Research. The budget includes $286 million within the Agency for Healthcare Research and Quality for research that compares the effectiveness of different treatment options, building on the expansion of this research begun under the Recovery Act. Disseminating the results of this research is expected to lead to higher quality, evidence-based medicine, arming patients and physicians with the best available information to allow them to choose the treatment option that will work the best for them.

Build on Health Information Technology (IT) Adoption Momentum. The budget includes $110 million for continuing efforts to strengthen health IT policy, coordination, and research activities. Combined with the Recovery Act’s Federal grant and incentive programs designed to assist providers with adoption and meaningful use of electronic health records, these efforts will improve the quality of health care while protecting privacy and security of personal health information.

The President’s budget is not final. It must be passed by Congress which means many of the budgetary items the President wanted could be removed or amended before the final one is passed. This process usually takes a few months and AMDA will keep you updated on any significant changes that occur.

January 2010

State Legislation

Assisted Living

In Iowa, a bill was introduced requiring the rules and standards used to certify assisted living facilities to now include policies and procedures for emergency preparedness, including natural disasters and evacuation plans. In Florida, a bill was introduced that would delete the requirements for an assisted living facility to obtain an additional license in order to provide limited nursing services.

Long- Term Care Facilities

Kentucky introduced a bill in the house that requires every long-term care facility to post the star quality rating assigned to the facility by the Centers for Medicare & Medicaid Services (CMS) Five-Star Quality Rating System for Nursing Homes. The information must be posted in a place that is accessible to all residents, employees, and visitors. Kentucky, along with West Virginia and Iowa, have bills requiring certain staff-to-patient ratios as well as requiring background checks for direct care workers.

Liability

This year has seen a large increase in the number of liability legislation that has been introduced. New Jersey has a number of bills relating to the issue; two of note establish limits for damages in medical malpractice actions. One bill sets limits on certain damages in a tiered system based on the outcome of the action. Caps for those damages range from $100,000 to $750,000 for more serve outcomes such as death. The other bill would cap noneconomic damages at $250,000. Missouri has a bill requiring the nursing facilities to purchase and maintain a minimum amount of liability insurance. Arizona is another state that has a few bills relating to malpractice. One states that unless the necessary elements of proof are established by clear and convincing evidence, a health care provider is not liable for any civil or other damages as a result of any act or omission. Other states with liability legislation include Washington and South Dakota. The South Dakota bill revises the limitations on damages from $500,000 to $100,000.

Others

• Alabama has introduced a house bill to authorize the medical use of marijuana.


• A New Jersey bill wants to establish a medical home demonstration project.


• California would authorize California State University to award the Doctor of Nursing Practice Degree.


• Missouri adds advanced practice registered nurses to the list of approved health care providers that can refer patients to physical therapy.


• A Colorado bill provides that a Medical Orders for Scope of Treatment (MOST) form that is properly executed and signed by an adult’s physician, advanced practice nurse, or physician’s assistant, if the physicians assistant is under the supervision or authority of the physician, will have the same force and effect as a physician’s order with respect to medical treatment of the adult who is the subject of the MOST form.

For more information about any of these bills please contact AMDA Government Affairs Representative Gaby Geise at ggeise@amda.com.

AMDA and AMA Hold Strategy Session on Class II-V Drugs

Over the past eight months, AMDA has been working with the American Medical Association (AMA) to address concerns with Drug Enforcement Administration (DEA) enforcement actions on Class II-V drugs. In mid-January, AMDA worked with the AMA to bring together representatives of AMDA, the AMA, the American Academy of Hospice and Palliative Medicine, the American Academy of Family Physicians, the American Geriatrics Society, and the American Osteopathic Association. The meeting was held “in an effort to better understand what is causing the dispensing delays and identify potential solutions that can be discussed with the DEA and the Senate Special Committee on Aging, which is interested in developing a legislative remedy,” said the AMA. The meeting follows AMDA’s success in getting the AMA’s House of Delegates to pass policy to address the issue with the DEA.

“As a result of the DEA’s enforcement activities, long-term care physicians are reporting concerns with the timely receipt of appropriate pain medications for nursing home and hospice patients,” said AMDA. This may be the result of increased fears by long-term care pharmacists that they will be targeted by the DEA if they do not have a written prescription before they dispense Class II drugs. A second unintended consequence is that some nursing facilities are readmitting patients to the hospital, because they cannot obtain needed drugs in a timely manner.

AMDA and other physician organizations recognize that neither long-term care facilities nor their nursing staff are currently DEA registrants; therefore, in order for the nurse-as-agent concept to be viable, creative approaches will need to be developed that allow for appropriate regulatory oversight of all who are involved in the prescribing of controlled substances. The AMA and AMDA are working with key physician groups to discuss this issue further and address the issues raised by the DEA.  “AMDA recognizes that there are multiple factors causing the current problem and we are anxious to work with the DEA to help identify strategies to address all of them, whether the nursing homes need to register to be treated like hospitals, or the definition of emergency needs to be changed, or pharmacies have to be made more accountable, should all be up for consideration,” said AMDA. 

In the next few months, AMDA hopes to testify before the Senate Special Committee on Aging at a hearing planned within the next month. AMDA Past President Jonathan Musher, MD, CMD, took Senate Committee staff on a tour of a nursing facility in December. Dr. Musher “walked” the committee members through the process of obtaining a class II medication for patients in this setting; and why wanting the physician to call the pharmacist and then have the nurse call the pharmacist before the pharmacist will release the medication is not the flow of what happens in the hospital. He explained that the nursing home pharmacy is not a retail pharmacy in a community. There is an “access” issue and this number is usually and “800” number with many people trying to get through.  He also explained why diversion is less of a risk in this setting than other settings. One, there is less user abuse potential than in the community. They don’t have the ability to take more than prescribed or sell their medication as in the community. That is, the patient (user) is given the prescribed amount at the prescribed time by a licensed nurse.  Second, all controlled substances are by federal law kept in a double locked system, counted each shift to ensure there is no discrepancy by two licensed nurses, who must sign a count sheet to show that the amount of medication used equals the amount of medications given to patients.  In addition, Dr. Musher explained the role of the medical director over medication management and also ensuring that there is an adequate pain management program in place such as in the AMDA clinical practice guideline.

AMDA and the physician organizations also are working on a letter asking the DEA to work with them on process solutions. “Patient care is our primary concern,” said AMDA. “We and our physician partners discussed many ideas for overcoming the unintended consequences of DEA enforcement.  All solutions are worth considering, whether it be changing the timeframe for delivering the hard copy of a fax, redefining what constitutes an emergency prescription, or developing process changes for business practices.”

Push for Permanent SGR Repeal before March 1

With less than two months until the dramatic 21% cuts to Medicare physicians’ payment, many are pushing Congress for a final solution. The American Medical Association (AMA) is beginning an intense campaign to get the attention of Congress asking for permanent action to be taken to finally repeal the flawed Sustainable Growth Rate formula (SGR). The AMA will be rolling out TV-ads to air in ten states throughout the month of January. Their ads can also be viewed online at: http://www.ama-assn.org/go/repeal-sgr.

“This ad is the opening salvo in our two-month campaign to urge the Senate to take immediate action to repeal the current Medicare physician payment formula and replace it with one that reflects the cost of providing care,” said AMA President Dr. J James Rohack. “Congress can no longer put a band-aid on the problem by passing yet another short-term fix that creates instability in the system for seniors and their physicians. A permanent fix is crucial to building a solid foundation for health reform.”

AMDA has long supported a permanent repeal of the SGR and will continue to advocate for action to be taken in Congress.

AMDA Continues to Push for Liability Reform

AMDA along with other organizations that are part of the Health Coalition on Liability and Access (HCLA) sent a letter to Congressional leaders urging them to include comprehensive medical liability reform in the health care reform legislation. Currently, the legislation includes provisions that would provide incentives to states that enact demonstration projects that test alternatives to the current medical liability system. AMDA joined HCLA in supporting alternative federal reforms and funding for states to consider other options (e.g., health courts, mediation). However, the letter urged Congress not to include any language that would impede on states, such as Texas and California, which have already passed comprehensive liability reforms.

In addition, the letter re-affirmed HCLA’s long-time stance to pass legislation that includes reasonable limits on non-economic damages, a provision that previously has been introduced, but failed to pass over the last decade in Congress.  “While the HCLA strongly supports comprehensive reforms that include reasonable limits on non-economic damages, which have a proven track record of success in states like California and Texas, the coalition also supports alternative federal reforms, as well as funding for states to consider other options” says the letter. AMDA’s 2009 Liability Survey showed that majority of respondents continue to support reasonable limits on non-economic damages.  Likewise, AMDA members support alternative options to medical liability reform.

The fate of liability reform rests on what happens as the two chambers of Congress continue to reconcile the two health care reform bills. While final legislation that would include provisions for caps on non-economic damages remains unlikely, it is expected that incentives for states to test alternative methods of medical liability reform will be included.

AMDA is a member of HCLA. HLCA is a national advocacy coalition comprised of more than 30 associations and businesses representing doctors and other health care providers, hospitals, health care liability insurers, employers, and health care consumers. HLCA is dedicated to reforming the medical liability system to increase patient safety, ensure that injured patients are compensated quickly and fairly, improve provider-patient communications, and ensure affordable and accessible medical liability insurance. For more information on HCLA please visit http://www.hcla.org/.

2010 State Legislative Sessions

The 2010 state legislative sessions have started. Currently, 31 states now are in session for the year. While health care reform remains a top priority on the national level, we also should expect a great amount of action on the state level. While some of the reoccurring issues will still be tackled this year, such as scope of practice, staffing levels, criminal background checks and liability, look for some states to form legislation to address hot button issues. 

For example, Washington State already has introduced legislation entitled the Uniform Controlled Substance Act, which addresses stepped up Drug Enforcement Administration oversight of controlled substances. Although this particular bill doesn’t directly address the nursing home setting, it shows a trend we might begin to see on the state level. Also, already passed by the New Jersey legislature, is a bill to legalize medical marijuana. A resolution on the use of medical marijuana in nursing homes is expected to be submitted to the AMDA House of Delegates resolution this March in Long Beach, California at the 2010 Long Term Care Medicine meeting.

States Currently in Session:
AL, AZ, CA, CO, DE, GA, IA, ID, IL, IN, KS, KY, MA, MD, ME, MI, MO, MS, NE, NH, NJ, NY, OH, RI, SC, SD, TN, VA, VT, WA, and WV.   

If any issues arise in your state, please contact Gaby Geise in AMDA’s Government Affairs Department at ga@amda.com or 410-992-3145.

Medicare Part B Therapy Caps Take Effect

On December 31, 2009, the exceptions process for therapy caps expired and now the caps are in effect. The Centers for Medicare & Medicaid Services (CMS) states that the therapy cap for combined physical and speech pathology therapy and for occupational therapy is $1,860 in 2010.

Currently, the Senate healthcare reform bill would extend the exceptions process through the end of 2010. The House health care reform bill would extend it through 2011. A stand-alone bill, the Medicare Access to Rehabilitation Services Act of 2009, introduced by Representative Xavier Becerra (D-CA) and Senator John Ensign (R-NV) would permanently repeal the therapy caps. AMDA has long supported the repeal of the therapy caps and continues to advocate for a permanent repeal.

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