Future of the Affordable Care Act: The Debate Rages On…
Yesterday, the Supreme Court upheld the constitutionality of the Affordable Care Act’s (“ACA”) individual mandate by a 5-4 majority (click here to view Hall Render’s Broadcast sent 06/28/12). Yet the fate of the landmark legislation remains far from decided. On Capitol Hill, Republicans will now move legislation to repeal the health care law in its entirety. However, the ability to do so will hinge on their maintaining a majority in the House of Representatives, winning a majority in the Senate and Mitt Romney winning the White House from Barack Obama following the November elections. While House Republicans will hold a largely symbolic vote on July 11 to repeal President Obama’s signature legislative achievement, the bill stands no chance of passing the Democrat-controlled Senate.
In order to gain the votes required to pass a repeal bill in the Senate, Republicans will need to maintain the number of seats they have now and gain three more from Democrats. If successful, they will only need a simple 51-vote majority in order to use a procedural tool known as “reconciliation” to repeal those provisions of the ACA that have direct budgetary impact, which includes the individual mandate. “Reconciliation” allows a majority to use Senate rules to fast-track budget-related legislation and avoid a potential minority-led filibuster. It is also the same procedural tool Senate Democrats used to pass the ACA in 2009.
Now that the ACA has been ruled constitutional, the Obama Administration is expected to dramatically increase the pace at which the law is being implemented, and there are numerous rules and regulations yet to be written that will now come to the forefront of the debate in Washington. For those health care providers with large numbers of employees, the Administration has yet to interpret the ACA’s employer responsibility provision, the requirement that penalizes employers with 50 or more workers if their employees receive subsidies through an exchange because the employer did not offer health insurance that is affordable. Federal agencies will also begin clarifying issues that deal with wellness programs and minimum coverage requirements.
Finally, despite this week’s ruling by the Supreme Court, lawsuits challenging the ACA’s exchange subsidies and contraception requirements will continue, and the issue of Medicaid expansion remains. While the Supreme Court upheld the individual mandate, it also stripped the federal government of its ability to cut off all Medicaid funding to states that don’t comply with the ACA provision that requires everyone under 133% of the federal poverty line be enrolled in Medicaid. Twenty-six states challenged the constitutionality of the ACA, and many of those are now expected to resist any attempts to expand Medicaid enrollment on the basis of budgetary constraints.
Supreme Court to Hear Hospital Case on Miscalculated DSH Rates
On Monday, the Supreme Court announced it would hear a case in which 18 hospitals sued HHS over disproportionate share (“DSH”) payments. In their petition, the hospitals claim they are owed money because CMS wrongly calculated the DSH formula between 1993-1996. Were the Court to decide with the hospitals, providers could potentially go back to the Provider Reimbursement Review Board (“PRRB”) to contest rates after the time for appeals ends in certain cases.
Despite the hospitals filing the claim to recover the funds after the time limit for appeals had expired, the hospitals claim CMS owes them money because CMS did not disclose the DSH payments were less than hospitals were due. The hospitals argue for equitable tolling and claim someone cannot be expected to appeal a decision within certain time restraints if the problem is not discovered until later.
The government argues the idea of equitable tolling is not applicable for the PRRB because it is an administrative board, not a court, and equitable tolling is a judicial principle.
Congress Seeks GAO Probe on Effectiveness of CMS’s Medicare Integrity Contractors
A bipartisan group of legislators sent a letter (June 26) asking the Government Accountability Office (“GAO”) to look into the effectiveness of CMS contractors’ Medicare integrity audits. Led by Senate Finance Committee Chairman Baucus (D-MT) and ranking member Hatch (R-UT), the members asked GAO to study the coordination between the various auditors, including Medicare Recovery Audit Contractors (“RACs”).
The letter asks GAO to focus on which process CMS uses to determine whether the contractors’ audit criteria and methodologies are valid, clear and consistent. The letter further asks whether CMS coordinates among contractors to ensure audits of providers are not duplicative and whether evidence exists of providers being subjected to overlapping audits on the same topic.
A timeframe for GAO’s response was not provided.
FDA Bill Heads to White House
The FDA Safety and Innovation Act (S. 3187) passed the Senate on Monday, 92-4. The same bill passed the House last week and is expected to be presented to President Obama this week. The President is expected to sign it in July. The bill authorizes $6.4 billion in fees to the FDA from the medical device and pharmaceutical industries and aims to get the FDA to approve certain drugs more quickly.
Health Care-Related Bills Introduced
- S. 3337: Senator Rand Paul (R-KY) introduced legislation that repeals the current physician reimbursement formula for Medicare patients, replacing it with a formula similar to what is used to calculate cost-of-living increases for Social Security benefits. The bill would provide an annual increase of not more than 3% to physician reimbursement each year beginning in 2013. The bill would be paid for by repealing Medicaid expansion under the ACA.
- S. 3338: Senator Mike Enzi (R-WY) introduced a bill that seeks to cut down on unnecessary radiation exposure by establishing minimum federal standards such as education and certification requirements for medical imaging and radiation therapy personnel. The bill would exempt providers with advanced medical training, including physicians, nurse practitioners and physician assistants. A companion bill has already been introduced in the House by Rep. Whitfield (R-KY).
Next Week
Both the House and Senate are out for the Fourth of July recess week. However, a number of Medicare CY 2013 payment rules could be issued by CMS. Payment rules for hospital outpatient, home health, dialysis and physician fee services are at OMB and are expected to be released within the next month.
For more information, please contact John F. Williams, III at 317.977.1462 or jwilliams@hallrender.com.
