DCMedical News: Monday, July 19, 2021
DCMedical News-DCMN
Washington, D.C.
Monday, July 19, 2021
DCMedical News is published every day both the House and the Senate are scheduled to be in session.
THE BIG STORY
Congress Returns
Both the House and the Senate are in session again, beginning today.
Milestones for the Senate: the Senate could take up the “infrastructure” and budget resolutions as early as today. InsideHealthPolicy reports that “The Senate is aiming to move the bipartisan infrastructure bill and the fiscal 2022 budget resolution as early as July 19, and the size and framework of the budget resolution could drive which health care provisions are ultimately included in Democrats’ upcoming reconciliation bill. Sources say it’s still unclear what Medicaid, Medicare and drug-pricing provisions might make it into the bill.”
Challenges for the House: “House Majority Whip Jim Clyburn (D-SC) and other lawmakers and beneficiary advocates are pushing hard for a federal solution to the Medicaid gap, and Senate Democratic leadership supports a gap fix as well but is also pushing to expand Medicare benefits.” One key apparently is what form of drug-price control is included in the budget resolution, a “pay for” for Medicaid and Medicare enhancement
Appropriations: the House Appropriations Committee approved, 33-25, the fiscal 2022 Labor-HHS-Education spending bill (Committee announcement here, bill here) measure that would provide nearly $254 billion to the Health and Human Services, Education and Labor departments, a $55 billion increase over FY 2021.
Administration Undertakes Major Antitrust and Monopoly Initiatives, Health Services One Target
An extensive Executive Order on antitrust and monopoly prices (here, STAT+ discussion of impact on drugs, here, The Source reports here, The New York Times commentary here), largely influenced by Columbia Law Professor Tim Wu, now a White House adviser, will target (among other monopolies) health field horizontal (hospital-hospital) and vertical (well-head-to-gas pump, hospital-physician) business combinations. A New Yorker profile of Prof. Wu (here, “The New Brandeis”), says “Wu and his colleagues are all too aware that this order, too, is likely to be challenged in the courts, where many judges have taken a restrictive view of the government’s power to promote economic competition. So, in drawing it up, they tried to address specific problem areas that are highly visible and subject to existing laws. “The whole approach of this executive order is to focus on areas where there are strong congressional authorities, often given during the New Deal or the nineteen-fifties and sixties, but which are not being fully used.” A vigorous new effort by Lina Khan, Chair of the Federal Trade Commission, working with a 3-2 Democrat to Republican majority, also aims at the health field (CQ report here). Attorney General Merrick Garland, characterized in this week’s New York Review of Books as practicing “moderation to excess,” has been “demonstrating, indeed articulating, a cramped view of his job that obscures how federal law enforcement should work, what its purpose should be in maintaining public confidence in our democracy, and how it can be used to promote our country’s long-term political stability.”
DOCTORS, NURSES AND OTHER HEALTH CARE PROFESSIONALS
Surprise Billing Regulation
The Commonwealth Fund (here) and Georgetown’s Professors Hoadley and Lucia report on the first regulations issued under the “No Surprises Act.” Per the report, “On July 1, four federal agencies charged with implementing the No Surprises Act issued an interim final rule that provides the first set of regulations for implementing the law, which was signed on December 27, 2020, and is effective January 1, 2022. It aims to ensure that consumers who inadvertently or unknowingly use out-of-network providers or facilities in specific situations will face no more than normal in-network cost sharing. Under the law, out-of-network providers and facilities are banned from sending consumers bills for amounts beyond in-network cost sharing.” A key concept is the Qualifying Payment Amount (QPA) which is “The insurer’s or plan’s median in-network contracted rate for a particular health care service in a specific geographic area. For 2022, the QPA is the median of contracted rates used in 2019, increased for general inflation. Separate QPAs are established for each insurance market — individual, large-group, small-group, or self-insured group health plans — in which the insurer participates.” Proposed Rule (411 pgs.) here, CMS Fact Sheet with bibliography here, CQ reports here, comment period on the interim final rule ends approximately September 1.
HOSPITALS AND OTHER HEALTH CARE FACILITIES
Hospitals Win Some, Lose Others, In Preparation for Fall Supreme Court Session
The Supreme Court agreed to hear an appeal of $1.6 billion in payment reductions in the 340B drug pricing program. In the 2018 rule for the Outpatient Prospective Payment System (OPPS), CMS reduced the payment rate for 340B drugs by 28.5% Under the program, originally intended to subsidize the charitable care of patients in safety net hospitals, pharmaceutical manufacturers are compelled to sell their products to participating hospitals and clinics at a discount, while hospitals re-selling the drugs may do so at a profit, the difference nominally intended for subsidy of the care of low-income patients. Hospitals contested the rule, on grounds that CMS was supposed to collect hospital survey data on drug acquisition costs before making the change. A federal district court agreed, an appeals court disagreed, the Supreme Court will settle the issue during its 2021-22 term.
An appeal by hospitals to have the Supreme Court overturn “site-neutral” Medicare payment did not succeed. Through the 1990s and early 2000s hospitals acquired physician groups, leading (in part) to the current status, with 70% of physicians now employed by a hospital, health system or corporate organization. In proposing acquisitions, hospitals were able to promise physicians higher pay, assuming that the higher pay rates they would receive for re-casting physician office visits as hospital outpatient services (the “facility fee”) would provide a margin for such pay increases. Now, visits at off-campus provider-based departments (PBDs, f/k/a physician offices) are reimbursed at 40% of the OPPS rate, “neutral” to what the physicians could bill if on their own. InsideHealthPolicy reports that “Hospital groups petitioned a federal district court to strike down the policy as it applies to off-campus PBDs that initially were exempt -- those that were billing under the OPPS before November 2015 -- but were included in subsequent rulemaking. The lower court agreed with the petitioners that HHS and CMS did not have authority to expand site-neutral payment in such a manner, but an appeals court panel reversed the decision.” So, site-neutral payment for services to outpatients under Medicare remains.
MEDICARE, MEDICAID AND COMMERCIAL HEALTH INSURANCE
Inpatient FY 2022 Prospective Payment Rule Comment Period Closes
The comment period for the proposed rule for Medicare’s Inpatient Prospective Payment System for acute care hospitals closed June 28th. This complex proposed rule contains the rates and policies for Medicare’s operating and capital payments to hospitals and long-term care hospitals (LTCHs) for the federal fiscal year starting October 1, 2021. It also sets payment rates for non-IPPS providers, such as cancer and children’s hospitals. A copy of the Healthcare Financial Management Association’s comments is here, analysis is here.
The State of the Union, Health Insurance
The Commonwealth Fund released results (report here, charts here) of a survey of 5,450 adults and their health insurance coverage. Highlights: “About 10 percent of adults ages 19 to 64 were uninsured during the first half of 2021. Rates were higher among Latinx/Hispanic and Black adults compared to white adults. Six percent of working-age adults reported they lost their employer health coverage because of job loss related to the pandemic; of those, 67 percent gained other coverage. Just under half of respondents reported they had been directly affected by the pandemic in at least one of three ways: getting COVID-19, losing income, or losing employer coverage. One-third reported lost income. More than one-third of insured adults and half of uninsured adults reported they had problems paying medical bills or were paying off medical debt during the prior year . . . People directly affected by the pandemic reported having medical bill and debt problems at higher rates than those not directly affected. Among respondents with medical bill and debt problems, 35 percent used up all or most of their savings, 35 percent took on credit card debt, 27 percent had been unable to pay for basic necessities like food or rent, and 23 percent delayed education or career plans.”
READINGS & REFERENCES
Select Coronavirus Public Health Resources and References (alphabetical) may be found here.
2021 CQ Congressional Calendar here.
PUBLICATION SCHEDULE FOR DCMEDICAL NEWS
July 20, 21, 22, 26, 27, 28, 29, 30
August - none
September 20, 21, 22, 23, 24, 27, 28, 29, 30
Notes to: Fred Hyde, MD, JD, MBA; fredhyde@aol.com.