October 15, 2010 Legislation






Three more states will vote on the ability to opt out of key provisions of the healthcare reform.  Colorado, Oklahoma and Arizona will vote as did Missouri previously to opt out of the individual mandate to purchase insurance.  The vote will have no standing as the states can not trump federal action.  They can be an embarrassment to the Democrats and Obama.

The Hill reports that Sebelius has missed seven deadlines in the new healthcare reform.  HHS has met the most important mandates but not all.  The areas missed by HHS were in reports regarding medically underserved, Medicare drug discounts, underserved rural communities, temporary high risk pools, nutritional information, screening procedures for government health programs and the 340B drug discount program.  They may also have missed deadlines regarding woman's breast health, increasing Indian Health Care Service staff, establishing a waiver program for states and reporting on nurse retention grants.  These do not bode well for the future timeliness of HHS.    

There is a potential problem with ACOs.  They are potentially against the law.  The FTC will consider waiving the antitrust laws for these organizations. There may also be expedited reviews for ACOs that are against the safe harbors of fraud and abuse. 

Also MedPac is discussing what CMS should do about ACOs.  Providers do not have to form ACOs but if they do Medicare will have to assign beneficiaries to the organizations and then the people will have the ability to opt out.

HHS has stated that it does not have the power to change Congress' mandate regarding having no insurance for six months as a precondition for entering the high risk pools.

The Congress has passed a bill giving tort reform to those physicians that work voluntarily at qualified federal health centers.  The Senate Health, Education committee will take up the bill upon their return.

Already the Obama administration has found that the new health plan has problems.  As McDonalds and other employers are threatening to pull their coverage the government is being forced into giving waivers to those who ask.  These waivers are for mini plans far below the law's standards.  The waivers are for one year but may be extended.  The government hopes that when the law goes into full effect in 2014 the waivers will no longer be necessary.   

The administration is now being forced to defend its waivers.  They say that giving waivers for the annual caps on benefits will allow more people to keep insurance until all are covered in 2014.  To date they have given 30 waivers and more are on the way.  Still another issue is the 85% mandated spending on health care.  This is the McDonalds issue and again the administration is allowing mini insurance.  After 2014 all will be eligible for exchanges or if legal to pay for their own insurance.  

The Senate will consider a bill requiring the administration to field public comment on all regs related to the new Obamacare.  To date only one of twelve have had a public comment period.  This is highly unusual to not allow public comment on new rules and goes against Obama's promise of transparency. 

The Obama administration has agreed to allow insurers raise fees for sick children, if state law allows.  This is to cut off the insurers from dropping individual children policies, a potential PR disaster. The insurers had stated that Obamacare had allowed the children to only purchase insurance when needed.  This is only until 2014 when the full impact of Obamacare is unleashed.

Another unintended consequence of Obamacare has been blunted thanks to the benevolent IRS.  Originally employers were supposed to report next year the cost of supplying health care to their workers on the W-2 forms.  This has been delayed for one year to allow employers time to adjust their payroll systems.  This amount reported is for employees to see how much is being paid and not for taxation purposes yet. 

The American Urological Assn. has released the EMR meaningful use requirements for physicians and hospitals to get paid more under Medicare. There are 15 things that all must do.  These are record patient specific demographics, record vital signs, maintain problem list, maintain allergy list, record smoking history, provide clinical summaries to patients, provide electronic health information copy on demand, e-prescribing, use CPOE, implement drug-drug/drug-allergy checks, test electronic clinical information exchange, implement one clinical decision support rule, protect patient data and report data to CMS.  Also, the entity must do five of the following ten items. They are implement drug formulary checks, incorporate clinical lab test results as data, generate patient list by condition, identify patient specific education resources, perform medication reconciliation, provide standardized summary of care for transferred patients, submit electronic immunization data to registries, submit electronic epidemiology data to public health, send follow up care reminders to patients or provide timely patient electronic access to health information.  When one considers the costs involved plus the above one must wonder whether it is worth it.  It should also be known that extra payments will come from an outside contractor and not CMS so will not come with regular Medicare payments.  This means more delays and hassles.          Top


California has pass oversight rules for CT scans.  All hospitals and clinics will be required to record radiation doses for each CT scan and to report any overdose to patients and their doctors.          Top


CMS has proposed new screening measures for physician and suppliers in Medicare, Medicaid and CHIP including licensure and database checks, unscheduled site visits, criminal background checks and fingerprinting for those in the high risk category.  Hospitals would pay a $500 application fee.  Allow the government to place a moratorium on new physicians in Medicare if high risk fraud trends are detected.  Suspend payments in cases where there are credible allegations of fraud.  Require Medicaid programs to deny or terminate a physician who had his/her billing privileges revoked by another federal or state agency.  Some of these are logical and some aren't.

HHS is giving out $9 million to senior Medicare patrols.  There are over 5000 volunteer retirees in programs teaching peers how to detect Medicare fraud.  That should be interesting since the Feds can not do it.        Top


The Joint Commission has published a reminder that MS .01.01.01 goes into effect March 31, 2011.  Get your bylaws and rules up to date.  Start your notification processes early.

A bill has actually been introduced into the Senate to get rid of SGR and go to the Medicare Economic Index (MEI).  Let us hope it passes quickly but it is more likely to be taken into consideration next year.        Top


DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.