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July 7, 2000

WEEKLY UPDATE for July 7, 2000

***LEGISLATIVE UPDATE
Congress to Return from July 4th Recess!
Pressure on Congress for a Patients' Bill of Rights
Congressional Schedule for the Year
H.R. 4577, Labor-HHS Appropriations Bill for Fiscal Year 2001
***REGULATORY UPDATE
IG Issues Letter Regarding Enforcement Related to OPPS Implementation
HCFA Issues Medicare+Choice Final Rule

LEGISLATIVE UPDATE

Congress to Return from July 4th Recess!

Members of the House and Senate will return to Washington on July 10. A raft of unfinished business awaits lawmakers as they begin to focus on the political conventions. They will have approximately three and a half weeks in which to complete action on a number of appropriations bills and other controversial matters. Reaching accord on a Patients' Bill of Rights is a priority for many Members. House Republican leaders have indicated their intention to redouble their efforts to craft yet another bipartisan measure they hope will strengthen their negotiations with Senators. (More information on developments surrounding this issue will appear in the next Weekly Update.) The President's declaration in Missouri this week that Congress must pass a responsible bill has added a degree of political urgency to the matter.

Congress Eyes Adjournment in October

Congress is scheduled to recess between July 31 and September 5 for its month-long district work period. During that time, Republicans will gather in Philadelphia between July 31 through August 3 to choose their presidential nominee (Gov. George Bush and his running mate) and adopt the party's platform. Democrats convene in Los Angeles August 14 through August 17 to confirm the nomination of their standard bearer (Vice President Gore and his running mate). Thereafter, the political season will move into full swing when Congress returns for the final stretch of 106th Congress. The curtain is set to come down on the Second Session October 6.

Labor-HHS Appropriations Bill Heads to Conference

House/Senate conferees on the Labor-HHS Appropriations bill (H.R. 4577) may meet next week to resolve differences between their respective versions of the measure. Senate conferees have been appointed: Senators Byrd (D-WV), Cochran (R-MS), Craig (R-ID), Domenici (R-NM), Feinstein (D-CA), Gorton (R-WA), Gregg (R-NH), Harkin (D-IA), Hollings (D-SC), Hutchison (R-TX), Inouye (D-HI), Kohl (D-WI), Kyl (R-AZ), Murray (D-WA), Reed (D-RI), Specter (R-PA) and Stevens (R-AK). House conferees have not yet been named, but Health Subcommittee Chairman John Porter (R-IL) and Ranking Member David Obey (D-WI) will be among those who will be named. As soon as we have the complete list of House conferees we will send them to you.

In next week's Weekly Update, we will identify those issues about which we will urge you to write to the conferees. Included in that list will be trauma control funding and a recommendation to House members to accept the Senate poison control funding level of $20 million.

REGULATORY UPDATE

IG Issues Letter Regarding Enforcement Related to OPPS Implementation

HHS Inspector General June Gibbs Brown recently sent a letter to the American Hospital Association regarding the OIG's enforcement policies surrounding implementation of the new Medicare hospital outpatient prospective payment system (OPPS). The AHA and its members expressed concern to the OIG that coding and billing errors are likely to occur as hospitals and fiscal intermediary's work to implement the new system. The OIG stated that billing errors, honest mistakes or negligence will not result in penalties - they will result only in the return of funds claimed in error. The OIG noted that the False Claims Act covers only offenses that are committed with actual knowledge of the falsity of the claim or reckless disregard or deliberate ignorance of the truth or falsity of the claim.

The letter is available on the OIG's web site at http://www.hhs.gov/oig/testimony/aha.htm.

HCFA Issues Medicare+Choice Final Rule

On June 29, the Health Care Financing Administration published a final rule in the Federal Register implementing the Medicare+Choice program that was established by the Balanced Budget Act of 1997 (BBA). The agency had issued an interim final rule in June 1998. In the final rule, HCFA left the prudent layperson definition of emergency medical services in tact. The final rule also made several clarifications and changes to the emergency services provisions. For instance, HCFA included a specific requirement that Medicare+Choice organizations assume financial responsibility for services meeting the prudent layperson definition, regardless of the patient's final diagnosis.

HCFA discussed the steps it is taking to ensure that Medicare+Choice organizations comply with the emergency services provisions of the BBA. The agency is reviewing all organization materials provided to beneficiaries including pre-enrollment marketing materials and post-enrollment member materials, including handbooks and wallet-sized instruction cards, to ensure that the materials contain compliant language regarding what to do in an emergency. In addition, as part of its monitoring of the prudent layperson standard, the agency has requested its independent review entity to report on a quarterly basis on each instance in which it overturns a denial of a claim for emergency services.

In the final rule, HCFA specified that Medicare+Choice organizations are required to cover ambulance services provided outside of the organization that are dispatched through 911 or its local equivalent. The Medicare+Choice organization must cover the costs of ambulance services if other means of transportation would endanger the beneficiary's health.

HCFA clarified that both the beneficiary and emergency services provider are protected from prior authorization requirements. Prior authorization may not be required in any enrollee materials. In addition, an enrollee's rights to use the 911 system must specifically be disclosed. Also, contracts with providers may not include instructions to seek prior authorization before an enrollee has been stabilized.

Regarding post-stabilization care services, HCFA retained the one-hour time requirement for Medicare+Choice organizations to respond to a request for authorization of post-stabilization care services. HCFA declined to include a requirement that an emergency provider contact the Medicare+Choice organization within an hour of the point at which the patient is stabilized. However, the agency is considering including such a requirement in future hospital conditions of participation. In addition, HCFA clarified that post-stabilization services are services related to the emergency episode. HCFA also addressed the issue of services furnished while waiting for a response to a request for authorization of post-stabilization care services. HCFA stated that it is necessary to ensure that the patient receive necessary treatment during this one-hour time frame. The services consist of those necessary to maintain the stable condition that was achieved through provision of emergency services. If the Medicare+Choice organization does not respond during the one-hour time period, the treating physician can proceed with post-stabilization services that are provided not only to ensure stability, but also to improve or resolve the patient's condition.