Health Care Lawyer Blog

Last Wednesday the Centers for Medicare and Medicaid Services (“CMS”) published the final rule (subject to comment period) for the 2010 Medicare Physicians’ Fee Schedule. (See 74 FR 61738, Nov. 25, 2009.) Notably, the Fee Schedule includes a proposed decrease of 21 percent in the physician fee schedule conversion factor, meaning reimbursements for many procedures will drop significantly under the new rule. The most affected practitioners will be rheumatologists, surgeons, pain management specialists, radiologists and non-invasive cardiologists. For example, reimbursement costs-for-procedure for echocardiography will drop roughly 35 percent under the proposed rule.

However, Congress has already intervened – on November 19, the U.S. House passed legislation which would allocate $210 billion over the next 10 years to prevent the reductions to physicians participating in the Medicare program. The bill (H.R. 3961), which still needs Senate approval, would create a new formula would actually boost doctors’ payments by 1.2 percent, instead of the 21 percent reduction now scheduled to take effect.

According to House Energy and Commerce Committee Chairman Henry Waxman (D-Calif.), the proposed Fee Schedule formula is too low and “would bring about havoc in the Medicare program.”

While the Obama administration has endorsed the plan (a Nov. 19 statement from Press Secretary Robert Gibbs called the measure “an important step forward”), the future of the bill in the Senate is not so certain. For starters, the Senate will begin debates this week on the passage of the Senate’s health care reform bill, the “Patient Protection and Affordable Care Act.” With the Patient Protection Act guaranteed to seize the spotlight, it is likely that little attention will be given to the H.R. 3961. Additionally, the Senate already blocked a similar proposal last month.

The U.S. Senate has consolidated two versions of health care reform bills into one piece of legislation, dubbed the “Patient Protection and Affordable Care Act.” Released late Wednesday night, the bill is expected to cost $130 billion over the next decade, according to an analysis of the bill released by the Congressional Budget Office. However, according to the Democrats' Senate website, the legislation will also cut the deficit by $127 billion, extend coverage to more than 94 percent of Americans, and insure 31 million more of the uninsured.

As with the House version, the Bill includes a government-run insurance plan. However, the difference with the Senate Bill is that states can opt-out of the government run plan, which means that by enacting legislation, a state may elect to prohibit the government-run plan from being made available to state residents. Of course, the problem with this is that the Senate bill also includes a provision requiring individuals to purchase some form of health insurance. However, the deadline for doing so would be moved from July 1, 2013 to January 1, 2014. Individuals who fail to purchase insurance would be penalized in an amount of up to $750 per year. Subsidies will be provided to low and moderate-income families to help such families purchase insurance.

Increasing access to health care may be a hot health care reform issue, but some legislators are focused on a different angle – making sure that health care funds are not squandered on fraud and abuse. Earlier this month Senator Ted Kaufman (D-Del) introduced the Health Care Fraud Enforcement Act of 2009 (S. 1959), which proposes to strengthen the federal sentencing guidelines and statutes governing health care fraud, forfeiture, money laundering and obstruction. Additionally, on Monday Senator Charles Grassley (R-Iowa) introduced the Fighting Medicare Payment Fraud Act of 2009 (S. 2774), which would give the Secretary of Health and Human Services authority to extend the time period in which Medicare payments must be made if the Secretary determines there is a likelihood of fraud, waste of abuse.

Kaufman Bill

The Kaufman bill, which was created to “building on the fraud-prevention efforts included in the [Senate Committees’] comprehensive health care reform bills” would make a few key reforms, including changing sentencing guidelines for criminals convicted of health care fraud, make punishments “commensurate with costs” of fraud, and increase whistleblower payments.

After the jump -- details on the Kaufman and Grassley Bills

Continue reading " Legislators Ramp Up Efforts to Stop Health Care Fraud " »

As anticipated last week, on Saturday night the U.S. House of Representatives voted 220-215 to approve H.R. 3922, the oft-discussed health care reform bill that would establish a national public-option plan. Dubbed the “Affordable Health Care for America Act,” the legislation also prohibits health benefits plan from imposing pre-existing condition exclusions, requires the establishment of uniform marketing standards for health benefit plans, and contains revisions to Medicare Parts A-D, among other provisions. The House bill also includes a surtax on individuals earning more than $500,000 a year and couples earning more than $1 million.

Notably, only one House Republican, Ahn "Joseph" Cao (R-La)), voted in favor of the Bill. Additionally, 39 House Democrats voted against it.

The Senate, under the direction of Majority Leader Harry Reid (D-Nev) is still working on combining two versions of health reform legislation, one passed by the Senate Finance Committee (S. 1796, “America’s Healthy Future Act”) and another passed by the Senate Health Committee (S. 1679, “Affordable Health Choices Act). Both include a public option, although the Finance Committee version includes an “escape hatch” provision where individual states can opt-out of the public option. Reid is awaiting a cost analysis from the Congressional Budget Office, so it is unclear when the Bill will be ready.

Continue reading " House Health Care Reform Bill Passes; Fate of Senate Bill Unclear " »

While the issue of whether physicians and health care practices are “creditors” under the Federal Trade Commission’s proposed Red Flags Rule is subject to some debate, a definitive answer will not be needed for awhile. The Federal Trade Commission (FTC) has announced that it has delayed enforcement of the Red Flags Rule until June 01, 2010. This last minute extension was made in response to a request from Members of Congress.

Specifically, on October 20, 2009, the House of Representatives passed a bill that would exempt certain businesses with fewer than 20 employees from the Red Flags Rule. The businesses exempted would be health care practices, accounting practices and legal practices. Additionally, the bill would require the FTC to adopt regulations setting forth a procedure for businesses having a low risk of identity theft to apply for exemptions from the Red Flags Rule. The Senate has not yet voted on this legislation. Accordingly, it is not known whether this bill will become law.

The Red Flags Rules, which were originally slated to take effect November 1, 2009, have come under fire from groups such as the American Medical Association and American Bar Association which claim that the Rule should not apply to healthcare practices or legal practices. Essentially, the Rule requires that all financial institutions and other businesses defined as “creditors” must implement programs to combat identity theft against customers. The FTC’s definition of “creditors” includes all businesses that regularly permit deferred payments for goods and services. According to the FTC handout (“Fighting Fraud with the Red Flags Rule”, available at http://www.ftc.gov/redflagsrule) such “creditors” can include health care providers (and also legal services providers).

Continue reading " FTC Delays Enforcement of Red Flags Rule (Again) " »

A vote on proposed health care legislation introduced in the U.S. House of Representatives last Thursday could come as early as this week, according to the Detroit Free Press. The House plan includes a public option that would negotiate rates with doctors and hospitals, rather than use prices set by the government. The Congressional Budget Office is scheduled to analyze the costs of the plan. House leaders have vowed to pass a bill by Nov. 11, however, such efforts may be waylaid by fights over abortion coverage.

In the Senate, which is entrusted with the task of melding two versions of legislation passed by the Senate Health Committee and Senate Finance Committee, Majority Leader Harry Reid (D-Nev) said that he will begin debate on the legislation once he gets costs estimates form the Congressional Budget Office. The bill passed by the Senate Health Committee this summer included a public option; while the bill passed by the Senate Finance Committee did not. However, last week Reid announced that he would include a public option in the legislation that he planned to take to the Senate floor. However, Reid’s proposal includes an “escape hatch” – individual states could choose to “opt-out” of the public insurance plan by adopting non-participation laws.

Once the debate begins, Senate Democrats will need unanimous support from every party member to reach the 60-vote majority required to stop the anticipated GOP filibuster.