RIGHT TURN ON RED

Health­care re­form back­ers brace to de­fend the law while crit­ics drool at sec­ond chance

Modern Healthcare - - Front Page - Jes­sica Zig­mond

Now, the real fight be­gins.

Af­ter re­claim­ing the U.S. House of Rep­re­sen­ta­tives last week, Repub­li­cans re­it­er­ated their prom­ise to re­peal this year’s Pa­tient Pro­tec­tion and Af­ford­able Care Act, a fight that prom­ises to make the year­long bat­tle lead­ing up to the land­mark leg­is­la­tion look like a pre­lim­i­nary bout. Mean­while, health­care providers and pur­chasers con­tinue to push their own agen­das as they pre­pare for ad­di­tional stages of the law’s im­ple­men­ta­tion, which Democrats are de­ter­mined to con­tinue.

For the health­care com­mu­nity, this power shift and po­lit­i­cal pos­tur­ing brings more un­cer- tainty about the fu­ture at a time when providers’ leg­isla­tive agen­das are full. Hos­pi­tals are await­ing an ex­pected year-end rule on ac­count­able care or­ga­ni­za­tions and would like to see changes in health in­for­ma­tion technology rules; physi­cians are urg­ing con­gres­sional lead­ers in this now lame-duck Congress to stop an ex­pected 25% Medi­care pay­ment cut; and in­sur­ers are em­pha­siz­ing that se­niors will see re­duced ben­e­fits and higher premi­ums be­cause of the law’s cuts to Medi­care Ad­van­tage plans.

In a news con­fer­ence Nov. 3, Pres­i­dent Barack Obama cau­tioned it would be a mis­take to mis­read the midterm elec­tion re­sults—in which Repub­li­cans picked up 60 seats in the House and six seats in the Se­nate—as a sign that vot­ers want to “re­lit­i­gate” the last two years of work that re­sulted in the health­care bill be­com­ing law last March. Per­haps, but that doesn’t mean Repub­li­cans are any less de­ter­mined to un­ravel it.

Rep. Eric Can­tor (R-Va.), likely the next House ma­jor­ity leader, said he hopes “we’re able to put a re­peal bill on the floor right away.” Se­nate Mi­nor­ity Leader Mitch McCon­nell (R-Ky.) said in a speech at the con­ser­va­tive Her­itage Foun­da­tion last week that Repub­li­cans should re­peal the leg­is­la­tion while work­ing in the House to “deny funds for im­ple­men­ta­tion” and in the Se­nate to vote against what he called the “most egre­gious pro­vi­sions” of the bill, even though they can’t ex­pect the pres­i­dent to sign it.

In ad­di­tion, the big wins posted by Repub­li­cans in gu­ber­na­to­rial races could slow im­ple­men­ta­tion of re­form pro­vi­sions tied to Med­i­caid. Florida Gov.-elect Rick Scott, an op­po­nent of the re­form law, now faces the op­tion of slow­ing en­act­ment of its Med­i­caid pro­vi­sions by re­fus­ing fed­eral money for that pur­pose (See story, p. 12). Also, a num­ber of state bal­lot ini­tia­tives af­fect health­care (See story, p. 10).

Judy Feder, pro­fes­sor of pub­lic pol­icy at Ge­orge­town Uni­ver­sity and a se­nior fel­low at the lib­eral Cen­ter for Amer­i­can Progress, said there is no ques­tion that Repub­li­cans will con­tinue their fight against the leg­is­la­tion at the fed­eral level. “At the state level—I think there will be po­lit­i­cal is­sues as they de­sign their ex­changes and im­ple­ment what’s in the fed­eral law.”

Mean­while, hos­pi­tal and physi­cian groups seemed con­vinced that the midterm elec­tion re­sults will not re­sult in dras­tic changes to the Af­ford­able Care Act. “They’re go­ing to move ahead with this law,” said Chip Kahn, pres­i­dent and CEO of the Fed­er­a­tion of Amer­i­can Hos­pi­tals. “Can the Repub­li­cans get the votes to re­peal or ob­struct? On the re­peal side, I think the House will pass the re­peal and re­place bill, but I think it will be very dif­fi­cult to get 60 votes in the Se­nate.”

Eric Zim­mer­man, a part­ner with law firm McDer­mott Will & Emery in Washington

agreed, say­ing that even though he thinks House lead­ers will make re­peal a pri­or­ity, it will be dif­fi­cult to achieve. “With that said, there are a va­ri­ety of tools and par­lia­men­tary ma­neu­vers avail­able to try to cre­ate mis­chief. Some of those in­clude with­hold­ing funds,” Zim­mer­man said. The Con­gres­sional Re­search Ser­vice “came out with a re­port that de­tailed over 100 ini­tia­tives that re­quire fund­ing, so Repub­li­cans in charge of ap­pro­pri­a­tions could withhold funds.”

Other tac­tics the new House lead­ers could em­ploy in­clude use of the Con­gres­sional Re­view Act, a law en­acted in 1996 that re­quires fed­eral agen­cies to sub­mit reg­u­la­tions for re­view and cre­ates an ex­pe­dited process for Congress to over­turn a reg­u­la­tion, or the Corrections Cal­en­dar, which re­sulted from a 1995 House res­o­lu­tion and cre­ates an ex­pe­dited pro­ce­dure for the House to re­peal or cor­rect laws or rules that are con­sid­ered du­plica­tive, bur­den­some or costly.

But Zim­mer­man said these meth­ods—sim­i­lar to a re­peal of the bill—are un­likely to have much suc­cess, given that they re­quire both houses of Congress to weigh in.

One area of the bill that was broadly op­posed by both Repub­li­cans and Democrats, and one the GOP would like to re­peal, is the In­de­pen­dent Pay­ment Ad­vi­sory Board, Zim­mer­man said. But there are two rea­sons he said this pro­vi­sion likely won’t change. First, the mea­sure was es­ti­mated to save $28 bil­lion be­tween 2010 and 2019, so it would have to be off­set by some­thing else; and sec­ond, when Repub­li­cans cam­paign, IPAB is not the sort of is­sue that would get peo­ple ex­cited.

But re­peal­ing IPAB would ap­peal to groups such as the Amer­i­can Hos­pi­tal As­so­ci­a­tion and the Med­i­cal Group Man­age­ment As­so­ci­a­tion, which rep­re­sents physi­cian group prac­tices. “Ev­ery­one in the provider com­mu­nity, not just physi­cians, wants the IPAB re­pealed,” said Pa­trick Smith, se­nior vice pres­i­dent of govern­ment af­fairs for the MGMA in Washington. The fact that the IPAB pro­vi­sion made it into the Se­nate leg­is­la­tion is one of the rea­sons the MGMA did not sup­port the fi­nal bill, Smith said.

A more press­ing is­sue for the MGMA now is to en­cour­age the cur­rent, lame-duck Congress to halt se­vere Medi­care pay­ment cuts for physi­cians sched­uled to take ef­fect next month.

Like the MGMA, the Amer­i­can Med­i­cal As­so­ci­a­tion said it would like to see changes to the IPAB pro­vi­sion and the Medi­care physi­cian pay­ment sys­tem. A rep­re­sen­ta­tive for the AMA was un­avail­able last week for an in­ter­view.

In a state­ment last week, the AHA said now that the cam­paign sea­son is over, the fo­cus should turn to gov­er­nance, and the as­so­ci­a­tion is poised to work with the new leg­is­la­tors on Capi­tol Hill. In ad­di­tion to the physi­cian pay­ment is­sue, the AHA also said it would like to see changes to health IT rules. In an in­ter­view, AHA Pres­i­dent and CEO Richard Umb­den­stock said that means fix­ing the mul­ti­ple-cam­pus pro­vi­sion in the mean­ing­ful-use rule, which al­lows for one pay­ment for health IT to hos­pi­tals, even if those fa­cil­i­ties have mul­ti­ple lo­ca­tions. “We feel that is not the in­tent of the stim­u­lus bill,” Umb­den­stock said, “so we need to see that change.”

Mean­while, Amer­ica’s Health In­surance Plans last week re­it­er­ated its con­cerns about high costs in health­care. AHIP Pres­i­dent and CEO Karen Ig­nagni said health­care costs con­tinue to rise and there need to be strate­gies to ad­dress that. “I think they are hear­ing a mes­sage on the cam­paign trail that folks are concerned about af­ford­abil­ity,” Ig­nagni said on Elec­tion Day af­ter a brief­ing about value-based in­surance de­sign, which aims to lower co­pay­ments for ser­vices rel­a­tive to their costs. Af­ter the elec­tions, AHIP spokesman Robert Zirkel­bach ex­panded on the or­ga­ni­za­tion’s con­cerns about cer­tain pro­vi­sions of the health re­form bill. “The small busi­ness tax in 2014 will in­crease costs for em­ploy­ers at a time when they are al­ready strug­gling with health­care costs,” Zirkel­bach said. As health­care groups push their agen­das for the cur­rent Congress, and as they wait to see how they might be af­fected by ei­ther a re­peal or un­der­fund­ing of the Af­ford­able Care Act, some said most Amer­i­cans do not want to see the law dis­solve.

“Frankly, I don’t think work­ing Amer­i­cans will stand for a Repub­li­can cru­sade to take away the ben­e­fits and pro­tec­tions in the new health re­form law,” Sen. Tom Harkin (D-Iowa), chair­man of the Se­nate Health, Ed­u­ca­tion, La­bor & Pen­sions Com­mit­tee, said in a state­ment on Nov. 4.

For ex­ec­u­tives at the Sioux Falls, S.D.-based Avera sys­tem, the pri­or­ity is to move for­ward and fo­cus on up­com­ing rules re­lated to the bill, ac­cord­ing to Deb Fis­cher-Cle­mens, vice pres­i­dent of the Avera Cen­ter for Pub­lic Pol­icy.

“I think a lot of lip ser­vice will be given to why health­care re­form is not mov­ing in the right di­rec­tion,” Fis­cher-Cle­mens said, “but I don’t think we will see ma­jor changes.”

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