April 1, 2010 Legislation

Joint Commission

Social Security



Joint Commission

The Joint Commission has given the go ahead to the revised MS.01.01.01.  It will go into effect March 31, 2011.  There will be educational meetings over the next few months since few understand it.        Top

Social Security

The Social Security System is broke.  It has started to cash in the IOUs from the general government that are stored in Parkersburg, West Virginia.  The system will now pay out more than it takes in.  In order to pay for the IOUs the government will have to borrow significant money from foreign sources.  This is at a time when the ins are borrowing money and creating debt at an all time rate.  Of course there will come a time, projected in 2037, that Social Security will be totally bankrupt with no more IOUs to buy.  The IOUs are earning interest which is good but the interest is paid by the government which is going further in debt which is very bad.        Top


The VA system was fined $227,000 by Pennsylvania for their incorrect dosages in prostate brachytherapy.  They were cited for incorrect treatment, non training of staff and not reporting the errors in a timely manner.  It was found that 97 of 116 men received the wrong radiation dose.  The Philadelphia VA has closed its prostate cancer program.

Johns Hopkins was fined $370,000 by Maryland for failure to monitor radiation in a safe manner.  The State will attend the hospital's radiation safety committees for the short term.          Top


Idaho along with 13 other states has passed a law enabling the State to sue the Feds if healthcare reform is passed that mandated payments by individuals.  Virginia is also planning to join in the suit.  Virginia also threatened suit if deem and pass is used.  They believe as do some constitutional scholars that it is an illegal procedure. 

The CBO has been meeting regularly with the Dems to make sure all will be seen as OK.  Indeed, the CBO states that the House bill will cost $940 Billion over 10 years and produce a net reduction in federal deficit by $138 Billion for the same period.  It does that by getting money early and not paying it out until later in the decade.  This bill is tied to a second bill that cuts out banks from lending for college loans and deems that the loans will come directly from the government.

The House bill has 10 major changes from the December passed Senate version.  They are changing the Cadillac health benefit tax to start at a higher amount, a one time $250 payment to those seniors who get into the doughnut hole for pharmaceuticals, a major hit to the Medicare HMOs, an increase in Medicaid payments to primary care physicians to Medicare rates, a slight decrease in the penalty to people who do not purchase health insurance, a three year payment to states for newly eligible Medicaid recipients, a decrease in disproportionate share hospital payments, a miniscule increase in money to fight fraud and a 12/31/10 date for the prohibition of physician owned hospitals to self refer.

On a late Sunday evening the House voted 219-212 with all Republicans and 34 Democrats voting against it to pass the Obamacare bill followed by a defeat of an amendment on abortion and followed again by a vote for the reconciliation bill.  The original passed bill, Obama will sign and then await the reconciliation bill from the Senate.  If it doesn't pass the Senate in the exact form as the House then it must return to the House for debate and passage of the Senate version.  The two bills will cost just under $1 TRILLION and in nine years provide health benefits for those that don't have them.  The key to the passage was Obama's stating that after the passage he would issue an executive order regarding abortion spending by the government.  Without that the bill would have failed.

Just prior to approving the reconciliation bill on the fateful Sunday, the House Rules Committee added six more things to the bill.  Of course, no one who voted new about it until after the vote.  They added a sales tax on medical devices sold in the US instead of an industry wide tax and delayed it to 2013, there is an acceleration of physician expense adjustment, more money to hospitals in the bottom 1/4 of counties ranked by risk adjusted spending per Medicare enrollee, insurers can not cancel policies unless fraud (this is a huge loophole), tax exempt insurers will be taxed on half of the premiums and the Cornhusker Kickback was removed.

When the reconciliation Bill went to the Senate for approval several minor things were found to be inconsistent with reconciliation and were fixed.  The Bill went back to the House for passage of the changes.  While at the Senate there were multiple amendments raised.  These included denying Viagra to sexual molesters, a requirement that all members of Congress must enroll in Medicaid, a certification that no member of any household earning less that $250,000 would see any increased taxes as a result of health care reform and a certification that no American would have to change their health insurance if they did not want to.  All were defeated by the Democrats.  Many of the amendments were crafted to take into account Obama's promises.  These Democratic votes will be used in the November election.

The Health Reform Bill stopped 60 physician owned hospitals from being built and destroyed the industry.  This will cost 25,000 jobs in 37 states. There are inconsistencies as pointed out by the following AHLA statement:

"Clarification of Confusion in Certain Date Provisions
of Whole Hospital Exception

By Physician Organizations Practice Group Leadership

Issues have arisen as to the dates necessary for physician ownership pursuant to the Whole Hospital Exception. On March 24, 2010, the Physician Organizations Practice Group circulated an email alert summarizing certain provisions of the Patient Protection and Affordable Healthcare Act affecting the Stark Law. Due to some changes in the dates of an earlier version of Section 6001, questions have arisen as to the interplay of the various dates contained in the Whole Hospital Exception provisions as enacted on March 23, 2010. Dates contained in an earlier version of Section 6001 were internally consistent with one another, in that hospitals had to have physician ownership by
February 1, 2010, which was a date certain prior to the date of enactment. Therefore, the date by which the percentage of physician ownership was set could only be changed prior to the date of enactment. However, the bill signed into law creates ambiguity because the date by which a hospital must have physician ownership is December 31, 2010, a date subsequent to the date of enactment, but the aggregate value of physician ownership cannot be changed after the date of enactment, or March 23, 2010. In addition, except for a limited exception process, the hospital's number of operating rooms, procedure rooms, and licensed beds cannot increase over the number as of March 23, 2010. A hospital currently under construction technically cannot have any beds that are licensed. These inconsistent provisions leave open the question of how to handle physician ownership in hospitals currently under development."

What happened to tort reform in the Bill.  It was defeated.  Approximated $50 million was allotted for demonstration projects for alternatives to the current court system.  The kicker is that any person may opt out of any of the demonstration for any reason.  Therefore it will never see the light of day. 

A little known but good part of the bill is the CLASS section.  The bill will have money taken out of all working people's paycheck (unless they opt out) to pay for long term insurance.  Of course, if one does not pay in they will not be eligible for the insurance when they need it.  The payments will be based on age with the younger people having less removed from their pay than the older worker since they have longer to pay into the system.

Other little known aspects are restaurants with more than 20 locations operating under the same name must post calorie counts on the menu or menu board.  Also there will be a national database for all payments to physicians or teaching hospitals from manufacturers for any amount paid greater than $10.  Another waste of money. 

The Dems were smart.  The onerous provisions of the act will not go into effect until after the 2012 election. In fact it is two years after.

In the new law insurers are now required to pay non contracted hospitals for their EMTALA evaluation and stabilization.  They can not require prior authorization for the above, have any restriction that is more than what they require in any contracted hospital nor have different co-pays.  The payments must be the same as for the contracted hospitals. 

NAMSS has created a summary of the 1500 page bill which no one has read including those who voted for or against the bill.  For those of you who are interested it is at http://www.namss.org/Portals/0/

Not only are 14 states challenging the Reform Act but so are the large companies.  Large companies are attempting to get the feds to redo a provision that reduces the tax deduction for companies with retiree drug coverage.  The companies are taking hundred million dollar charges now due to SEC rules.  The White House couldn't care less and said it was a closure of a loophole that now will probably cost many their jobs.

The New York Times states the new law will not reduce unnecessary care as there are no incentives to do so.  People want tests and if they can't get it they will go see a new physician until they get the test they want.  Those visits add up monetarily as do the unnecessary tests.  The only way to go is via national rationing, something that those that wanted reform also wanted.

The Washington Post believes that young adults will see their health premiums increase a minimum of 17% since they have to pay for the older folk.  The law states that there can be only a 3:1 ratio between age groups and therefore insurers will increase the lower age premium to increase the older age premium.

New York now has a law that lays out the decision tree for who decides an incompetent health care decisions.  The top is a court appointed guardian followed by spouses and domestic partners.  Next in line are children, parent, siblings in that order.  The law allows the surrogates to take into account the patient's wishes or if not known the patient's best interest.  The new law also protects a patient's right to insist on treatment and to transfer to another hospital if a doctor objects to the treatment.    

The Senate has done it again!  They have adjourned without passing any extension of unemployment benefits and the SGR.  These are up on April 1.  Usually CMS instructs its carriers to hold payments for several weeks.  To date no such order has been issued.  Will the 21% decrease go into effect??

The DEA has issued an interim rule allowing CPOE to integrate controlled substances into the orders.  This will help CPOE get off the ground.         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.