Washington Watch: It’s Now or November: Congress Faces Slim Window to Pass Bills as Election Season Brings More Gridlock

Published Friday, August 31, 2012
by Marjorie Vanderbilt, AAGP Deputy Executive Director & Director of Government Affairs

When Congress reconvened after its July 4th recess, there remained only a four-week stretch before the five-week August recess. While that might sound like a reasonable amount of time to get some serious work done, in reality it meant that, at most, 16 legislative days remained before politics completely swamped the Capitol Hill agenda. When Congress left town in early August, members geared up for the political conventions and returned to Washington for only a handful of days in the fall. The House is scheduled to be in session for just seven weeks in the four months before November 6, and the mix of expiring tax provisions, Medicare payments to physicians, and looming spending cuts is expected to dominate the post-election lame-duck session.

Much of this summer’s legislative agenda has been mired in election-year messaging, with the Republican-controlled House voting to repeal the health care reform law and may consider legislation to extend the full slate of Bush tax rates and Senate Democrats pushing for consideration of the DISCLOSE Act (a controversial campaign finance reform bill to shed more light on political spending.) Although none of those measures is expected to advance in the other chamber, each will take up a good portion of the legislative calendar. From now through Election Day, most legislation will be “for show,” and some legislation will amount to political positioning votes that each side can use in their campaigns.

However, there is some activity on high profile bills. For example, prior to the July 4th recess, Congress passed big-ticket items, including a highway bill. In addition, there has been action on legislation to prevent a spike in the interest rate for student loans as well as a bill to ban insider trading for lawmakers. However, that trend is in jeopardy. In July, lawmakers face a tight window for action on a host of issues that remain on their plate, including a farm bill, reauthorization of the Violence Against Women Act, a bill to audit the Federal Reserve, and Fiscal Year 2013 appropriations legislation.

In a rare display of bipartisanship before an actual deadline, in late July, leaders of both parties cut a drama-free budget deal, won immediate bipartisan support, and did this all two months before deadline. The agreement was for a six-month Continuing Appropriations Resolution that would fund all Federal agencies from the start of Fiscal Year 2013 (October 1, 2012 through March 31, 2013). Funding levels are expected to be set to follow the $1.047 trillion spending level agreed to for Fiscal Year 2013 in the Budget Control Act (the debt limit law) last summer. Agreement was reached very quickly on this, in large measure because of a realization of how many other major issues will have to be dealt with during the lame duck session in November and December. In addition, agreement on a six-month continuing appropriations resolution will avoid any possibility of a messy pre-election showdown over shutting down all or part of the Federal Government on October 1 because of lack of Fiscal Year 2013 funding, something that neither party wants shortly before the November elections. The fact that congressional leaders came together so quickly on this agreement showed that neither party wanted to relive the pitched political battles over Federal spending that have defined this divided Congress over the past two years. Although the House and Senate did not vote on the continuing resolution prior to the start of the five-week summer recess, a vote will occur prior to the September 30 deadline.

Tax cuts, spending cuts and the deficit will dominate Capitol Hill this fall. However, lawmakers are already starting to maneuver to use the lame-duck session to clean up a host of other issues that Congress has been unable—or unwilling—to handle. Among the bills that will be considered during the lame duck session are: a host of measures that expire at the end of this year including marginal tax rates for every American, the reimbursement rate for physicians who treat Medicare patients, the alternative minimum tax, the debt ceiling, unemployment insurance, parts of the Foreign Intelligence Surveillance Act, and parts of the Temporary Assistance for Needy Families welfare program. In addition, Congress will need to consider a measure to shore up the finances of the U.S. Postal Service, which was due to default on $11 billion worth of health care retirement payments in August, and might take up a measure to legalize online gaming—something that’s long simmered on the back burner.

However, not everything can be done in a lame-duck session. And the more that issues are punted away until after the election, the more both the House and Senate will be swamped a t the end of the year—making each issue an uphill climb. In addition, much of what happens after the election hinges on the election; the landscape for legislative activity will change significantly depending on the outcome of the November elections. Nevertheless, the lame-duck session is shaping up to be one of the most significant sessions in recent history.

Two House GOP Doctors Craft Draft Medicare Reimbursement Proposal

In mid-June, two members of the House Republican Doctors Caucus drafted legislation to create a new Medicare payment system for physicians that includes a five-year period under which physicians’ payments would be updated annually while a new reimbursement system is developed.

The 27-page draft, which is being circulated by Reps. Tom Price (R-Georgia) and Charles Boustany (R-Louisiana), includes a five-year period in which physicians’ annual Medicare reimbursement would be tied to a medical economic index and a four-year time frame for Congress to consider legislation implementing a new reimbursement system.

This draft is the second to be produced by House lawmakers in the past few months. On May 9, Reps. Allyson Schwartz (D-Pennsylvania) and Joseph Heck (R-Nevada) introduced the Medicare Physician Payment Innovation Act (H.R. 5707), which also contains a five-year transition to a new payment system.

H.R. 5707 is paid for by estimated savings from the wars in Afghanistan and Iraq. In a “Dear Colleague” letter to all members of the House, Price and Boustany said that their proposal “is not yet paid for.” “Dear Colleague” letters are sent among lawmakers to seek support for legislation or for other purposes. “While budget experts have identified a wide variety of offsets to fund reform, we have chosen not to include one for the purposes of this draft,” the letter said.

The cost of a permanent physician payment fix has been estimated at more than $300 billion over ten years. The high cost associated with a permanent fix has led Congress to produce a series of temporary payment patches over the last eight years. The latest patch expires on January 1, 2013. Unless Congress acts by then, physicians’ Medicare reimbursement will be cut by approximately 30 percent.

In their “Dear Colleague” letter, Price and Boustany said they “continue to hear from constituents who have difficulty finding a physician who accepts new Medicare patients. The unrealistic Medicare physician payment formula exacerbates this problem by requiring automatic annual cuts that would force seniors to wait longer and travel further for care.”

The proposal contains numerous other provisions, including one that would limit malpractice lawsuits against physicians following best practice guidelines established by the Department of Health and Human Services.

Representatives Price and Boustany have indicated that they have no immediate plans to introduce legislation on the physician payment issue. Rather, their draft is intended for comments and feedback from other members of the House of Representatives.

Bill To Extend Part B Reimbursements Introduced

On July 18, Rep. Michael Burgess (R-Texas) and four cosponsors introduced H.R. 6142, a bill entitled the Assuring Medicare Stability and Access for Seniors Act, to provide a one-year extension of current Medicare Part B reimbursements, through the end of 2013, while Congress evaluates options.

With the presidential election and a variety of congressional obligations occurring in the second half of 2012, Burgess said that he hoped Congress would consider his bill in the near future. However, Rep. Frank Pallone (D-New Jersey) questioned where Burgess planned to get the funds to pay for the extension. According to Rep. Henry Waxman (D-California), Republicans in the past “simply extended the SGR payments and didn’t pay for it.”

The cost of a permanent physician payment fix has been estimated at more than $300 billion over ten years. The amount has led Congress to produce a series of temporary pay patches, over the past eight years, with the latest set to expire at the end of 2012.

H.R. 6142 has been referred to the House Energy and Commerce Committee and the House Ways and Means Committee.

IOM: Altering Geographic Payment Would Yield Five Percent Reimbursement Change

Changing the way Medicare adjusts provider reimbursement to more accurately reflect the cost of doing business in different regions across the country would result in an increase or decrease of payments to most providers of no more than five percent, the Institute of Medicine (IOM) said in a report released on July 17.

In a follow-up to a 2011 report on the issue, IOM said recommendations it made to change Medicare’s geographic adjustment would affect 88 percent of Medicare hospital discharges and 96 percent of physician billings, but only by an average of plus or minus five percent of their current payments.

“There is a general perception that variations in payment rates could affect where health professionals decide to practice and contribute to regional differences in the availability and quality of care,” IOM said in its report entitled Geographic Adjustment in Medicare Payment Phase II: Implications for Access, Quality, and Efficiency.

“Given the relatively modest payment changes that would occur in many regions and given that geographic adjustments are only one factor in Medicare payments, revising these calculations may not have a significant overall impact on the distribution of providers and on improving care access and quality,” it added.

A report brief is at http://tinyurl.com/7dnlzgv.

MedPAC Chair: Medicare Must Move From Fee-For-Service

At a June 19 hearing of the Health Subcommittee of the House Ways and Means Committee, the chairman of the Medicare Payment Advisory Commission (MedPAC), Glenn Hackbarth, stated that Medicare needs to move away from its traditional fee-for-service benefit design; however, he also emphasized that beneficiary choice and access to care must not be compromised in the process.

Hackbarth told the subcommittee that the recommendations made by MedPAC would help redesign the traditional Medicare benefit package, which is expensive and unsustainable.

In MedPAC’s June report to Congress, the commission recommended a cap on out-of-pocket beneficiary spending as well as a surcharge on the roughly 90 percent of beneficiaries who purchase supplemental coverage. The recommendations would also allow the Secretary of the Department of Health and Human Services (HHS) to develop a new Medicare fee-for-service design that would combine the deductible for Part A hospital and Part B physician services and replace the current coinsurance with a copayment that would vary by type of service and provider.

Hackbarth told the subcommittee that MedPAC does not intend to limit beneficiaries’ access to care, and the surcharge is not intended to stop them from buying supplemental coverage. He reiterated a point the commission made in its report: beneficiaries who choose supplemental plans to cover cost sharing do not face the real cost of those plans. He also said that supplemental coverage leads to higher utilization of services, some of which may not be necessary, and results in higher costs to the Medicare program. Hackbarth said that MedPAC thinks it is appropriate for beneficiaries “to face at least a portion of the additional cost” in order to help slow cost growth.

Congress does not have to enact any of the recommendations contained in the MedPAC report.

Rep. Wally Herger (R-California) said that Congress should be open to any and all solutions to fixing the financial challenges posed by Medicare. “There are no one-size-fits-all answers to these challenging health care questions, but in light of Medicare’s and our nation’s financial challenges, we must critically review our existing payment policies to ensure they are accomplishing their goals,” he said.

House Approves Bills To Repeal Health Care Reform Law and To Block Funding

On July 11, by a vote of 244 to 185, the House of Representatives approved legislation (H.R. 6079) to repeal the health care reform law, after a second day of debate in which Republicans charged that the law is stifling the economy and Democrats accused Republicans of wanting to eliminate important health care protections for millions of Americans.

Five Democrats joined Republicans in voting for the legislation to repeal the Patient Protection and Affordable Care Act (PPACA), which is not expected to advance in the Senate.

Republicans expressed a renewed determination to repeal the law completely in light of the June 28 decision by the U.S. Supreme Court upholding the constitutionality of PPACA. It is unclear whether House Republicans will hold more votes this year to repeal the reform law entirely or parts of it.

According to Sen. Orrin Hatch (R-Utah), the ranking Republican on the Senate Finance Committee, if Republicans take control of the Senate in 2013, they will use the budget reconciliation process—which would allow measures to go forward with a simple majority vote—to repeal the health care form law. He said that it should come as no surprise to anyone that Republicans would use the budget reconciliation process to repeal the PPACA, since Democrats used the same procedure to approve the law in 2010. Most activity in the Senate is governed by the need for a 60-vote majority, but neither party is expected to hold that many seats as a result of the elections in November.

In a July 9 speech, Hatch said that Republicans should then focus on replacing the law with “pro-market alternatives” designed to lower the cost of health care, which would allow more Americans to get coverage. Republican health reform efforts “must begin and end with efforts to lower the cost of coverage,” Hatch said. However, he did not offer any specific policy recommendations.

On July 18, the Labor-Health and Human Services (HHS)-Education Subcommittee of the House Appropriations Committee approved its Fiscal Year (FY) 2013 funding bill for those agencies. The bill was approved mostly along party lines, with Rep. Jeff Flake (R-Arizona) casting the sole Republican opposing vote. The measure allows Republicans to set down markers on which spending they want to continue and which they want to cut. The measure would bar spending to implement the health reform law and rescind existing funding from programs established under that law.

Rep. Denny Rehberg (R-Montana), the chairman of the Labor-HHS-Education Subcommittee of the House Appropriations Committee, said, “This committee cannot repeal Obamacare directly. But we can prevent it from being further implemented with taxpayer dollars we have jurisdiction over.” House Democrats condemned the proposed spending cuts and said that they had been left out of the bill writing process.

Rep. Rosa DeLauro (D-Connecticut), the subcommittee’s ranking Democrat, said about the subcommittee bill, “This is wrong for women, wrong for children and wrong for seniors. Stop pushing an ideological agenda that places the health of our constituents at risk.” DeLauro had sought to strike sections of the bill that would eliminate funding for the health care law. Her amendment was rejected by a subcommittee vote of 5 to 9.

As of early August, no date for consideration of the FY 2013 funding bill by the entire House Appropriations Committee had been scheduled, and word was circulating that consideration had been “indefinitely postponed.” In addition, even if that bill were to be approved by the House Appropriations Committee and also by the entire House of Representatives, it is highly unlikely that it would be approved by the Democratic-controlled Senate, which has yet to approve any FY 2013 appropriations bills.

On July 31, it was announced that the House and Senate leadership, as well as the White House, had reached an agreement to avoid a government shutdown this fall. The agreement is a six-month continuing resolution (a catch-all spending bill) to keep all Federal Government programs funded for six months after current funding runs out on October 1, the start of Fiscal Year 2013. Without a resolution to keep the government operating, the government would shut down after September 30. Both Republicans and Democrats want to avoid that with the November elections rapidly approaching. The vote will occur in September.

CMS Updates Hospital, Nursing Home Compare Websites

On July 19, the Centers for Medicare and Medicaid Services (CMS) announced that two websites that help patients make informed choices about hospitals and nursing homes have been redesigned to make more information available to the public.

According to CMS, the two sites—Hospital Compare and Nursing Home Compare—have been enhanced to make navigation easier by users and add important new comparison tools like findings from nursing home inspections. On both websites, CMS said navigation has been improved for consumers, who will find large and easy-to-use maps for pinpointing hospitals and new search functions that allow the user to input the name of a hospital. Glossaries and web resources also have been enhanced to make the information easier to understand, the agency said.

According to CMS, both sites contain important data on how well these facilities perform on quality measures—such as the frequency of hospital-acquired infections, readmissions, and the percentage of nursing home residents who report having moderate to severe pain while staying in the facilities. CMS said researchers will now be able to access the data on both of the sites through mobile-ready applications.

Updates to Nursing Home Compare include:

  • Narratives that detail specific findings from inspections of nursing home facilities;
  • Two new measures that report a nursing home’s use of antipsychotic medications; and
  • Updated data for quality measures previously available on the site.

Updates to Hospital Compare include:

  • Two new measures that cover potential health risks of imaging services, such as exposure to unnecessary radiation; and
  • Updated data for existing quality measures.

CMS said there were more than 1.2 million visits to the Hospital Compare site in the first half of 2012 and more than 500,000 visits to Nursing Home Compare. The hospital website is at www.hospitalcompare.hhs.gov/. The nursing home website is at www.medicare.gov/nhcompare/.

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