Congressman Pete Stark (D-CA) made clear this week that he will oppose any effort to relax federal health care fraud and abuse laws, including the law that bears his name. Physician advocacy groups have recently called on Congress to relax anti-fraud laws as a way to entice doctors to enter into new reform models. As it stands today, health care providers are prevented from instituting reforms that use financial incentives to improve quality and efficiency. In a report issued last month, the Government Accountability Office noted there are no exceptions or "safe harbors" for quality and efficiency agreements used as an alternative to traditional fee-for-service Medicare.
The American Medical Association has argued that reforming regulations like the Stark Law would help physicians move toward new approaches to replace the current Sustainable Growth Rate ("SGR") physician payment formula. However, Hall Render has learned from sources on Capitol Hill that it is very unlikely any waivers from fraud and abuse laws will be included in SGR legislation this year. In fact, prospects for any reforms moving through the House Ways and Means Committee are complicated by Rep. Stark's service on that committee and he made clear through a spokesman this week that congressional involvement is neither appropriate nor necessary at this time.
CMS Issues ANPRM on Medicare Secondary Payer Program
Earlier today, the Centers for Medicare & Medicaid Services ("CMS") issued an Advance Notice of Proposed Rulemaking ("ANPRM") to solicit comments on options for beneficiaries to meet their obligations to protect Medicare's interest with respect to the Medicare Secondary Payer ("MSP") program. Specifically, the ANPRM addresses options for beneficiary obligations with respect to MSP claims involving automobile and liability insurance (including self-insurance), no-fault insurance and workers' compensation when future medical care is claimed or the settlement, judgment, award or other payment releases (or has the effect of releasing) claims for future medical care. The ANPRM also solicits comment on the feasibility and usability of seven options for addressing future medical care. The ANPRM is available under "Regular Filings" at https://www.federalregister.gov/public-inspection. Comments will be accepted on the ANPRM until August 14, 2012.
CMS Audit Process Criticized on Capitol Hill
In a hearing before the House Energy and Commerce Subcommittee on Oversight and Investigations last Friday, CMS deputy policy director Ted Doolittle acknowledged that contractors who perform Medicare fraud audits may be using tactics that are too aggressive and that the agency has to be "fair" to providers who haven't done anything wrong. Rep. Kathy Castor (D-FL) raised concerns that those efforts have trapped honest companies in complex legal proceedings with little due process. "They kind of feel like this is the Wild West," she said. "I don't think it's fair for an auditor to come in to take documents and not have some timeframe or even a dialogue." Doolittle told the congresswoman that CMS has started to review how contractors treat providers during the review process. He believes the agency's new Zone Program Integrity Contractor program, which uses data-driven methods to detect potential fraud before it occurs and prevent the need to recoup funds from improper claims, will help ease the burden even more.
Labor-HHS Appropriations Bill Moves Forward
After defeating a series of Republican amendments that would have stripped numerous provisions of the Affordable Care Act ("ACA"), the Senate Appropriations Committee approved the Labor-HHS appropriations bill on Thursday. Although the bill was passed mostly along party lines, an amendment offered by Sen. Mary Landrieu (D-LA) to move $50 million of the budget for the National Institute of Health to institutions in states other than California, New York and Massachusetts was included after receiving support from several Republican senators. The Senate Leadership has not said when the bill is expected to reach the floor, and the House has yet to pass its version out of committee. Look for both bills to be included in larger spending measures later this year.
CMS Surprised Hospital Industry with Governing Board Regulation
The American Hospital Association ("AHA"), National Association of Public Hospitals and Health Systems and Association of American Medical Colleges criticized CMS this week for including a conditions of participation regulation that says a member of the medical staff must serve on a hospital's governing board in a 145-page final rule that was issued last month. The regulation, which was not mentioned in the proposed rule, caught industry associations by surprise. In a letter to acting CMS Administrator Marilyn Tavenner, AHA President and Chief Executive Richard Umbdenstock said, "Had these substantive changes been proposed properly they would have generated significant opposition from hospitals during the public comment process." While the rule is set to take effect on July 16, industry groups plan to pressure CMS to withdraw or indefinitely delay implementation of the governing boards provision.
Hall Render has been working closely with CMS and has received direction from the agency on how hospitals should handle this issue. If you have any questions, please contact your regular Hall Render attorney.
The following health care-related legislation was introduced this week:
S. 3295 - Senator Harkin, Chairman of the Senate Health, Labor, Education and Pensions committee, introduced the annual appropriations bill for the Labor, Education and Health and Human Services Departments. The Senate Appropriations committee approved the spending bill on Thursday. CMS was allotted an additional $547 million, much of which goes toward implementation of the ACA. There was also a $100 million funding increase for the National Institutes of Health. The next step for the bill is the Senate floor.
The House returns from recess on Monday, and the Senate remains in session. The House will take up a number of appropriation bills, and both chambers will continue negotiations on the FDA and medical device reauthorization bill. The Senate will continue deliberations on the Farm Bill and hold hearings on the release of the Medicare Payment Advisory Committee's annual report. However, a Supreme Court decision striking all or part of the ACA could significantly alter the legislative agenda for the week and coming months.
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