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September 22, 2000

WEEKLY UPDATE for September 22, 2000

LEGISLATIVE UPDATE
1) Appropriation Bills-Slow Moving Committees & Partisan Gridlock!
2) Patient Protections-Endgame Strategy
3) National Practitioner Data Bank Disclosure (H.R. 5122)
4) The Child Passenger Protection Act (S. 2070)
5) Balanced Budget Refinement Act of 2000
REGULATORY UPDATE
1) HCFA Administrator Announces Resignation
2) HCFA Releases Proposed Ambulance Fee Schedule
3) PPAC Hears Concerns Regarding E/M Guidelines
4) HHS Issues Guidance for Providers Regarding Patients with Limited English Skills

LEGISLATIVE UPDATE

1) Appropriation Bills-Slow Moving Committees & Partisan Gridlock!

With 11 out of 13 funding bills still to be passed by Congress and signed by the President, talk of a "Lame Duck Session" --or a session of Congress that occurs after the November elections but before the newly elected Members of the new Congress are sworn in-- was buzzing through the Capitol this week. Confronted with the possibility of a budget showdown with the President, the GOP Leadership conceded to preparing a short-term "continuing resolution" that would keep unfunded government programs running until October 6 or 7. President Clinton also said he would sign short continuing resolutions until all the appropriation bills are signed into law.

The Labor-HHS appropriations bill stalled during talks with Republican leaders and the White House. The $20 million for poison control centers and $3 million for trauma centers/EMS planning remain in the Labor-HHS appropriations conference agreement. In negotiations are President Clinton's wish list of $115 billion in discretionary spending, $6 billion more than Congress is willing to spend. Transportation appropriation talks have been difficult because of a Senate provision that penalizes states that do not adopt the 0.08 percent blood alcohol content standard for defining intoxicated driving. This provision has substantial support in the House and Senate and would withhold 10% of federal highway funding from states not in compliance.

2) Patient Protections-Endgame Strategy

The latest revision to the Norwood-Dingell patients' bill of rights came under scrutiny this week by the insurance industry and business community. The Association of Private Pension and Welfare Plans published an analysis of the revision, claiming that the bill expands patients' rights to sue providers and employers by stipulating cases under either state or federal court jurisdiction. The new provisions permit patients to file suit to enforce mandates under the managed care bill, with new inclusions for failure to meet the requirements of the 1986 COBRA insurance continuation law, the 1996 Health Insurance Portability and Accountability Act and laws requiring mental health parity and length of hospital stays for new mothers. A similar analysis by the Business Roundtable found the redraft would compromise the essence of the Employee Retirement Income Security Act and would expose "virtually any individual or entity connected to a group health plan to economic, non-economic and punitive damages under both state and federal law."

A spokesman for Rep. Charlie Norwood (R-GA) stated that the analyses were "predictable," and "will continue to claim that everyone is liable for everything, no matter how many protections are written into the bill for employers and insurers who play by the rules...." A further complication arose as Sen. Don Nickles (R-OK) announced he would use parliamentary procedures to prevent the bill from coming to a vote. ACEP's emergency services provisions are included in the new version of the Norwood-Dingell legislation.

3) National Practitioner Data Bank Disclosure (H.R. 5122)

A hearing was held this week on the Patient Protection Act (H.R. 5122), sponsored by House Commerce Committee Chairman Tom Bliley (R-VA). The bill would open the National Practitioner Data Bank (NPDB) making malpractice information available to the public and would report criminal convictions. The hearing included three panels of health care consumers and professional organizations.

AMA's President-Elect Richard Corlin, MD, testified against the changes to the NPDB. "The AMA believes that responsibility lies with the state agencies who are not only making a concerted effort to put forth more comprehensive information, but who actually have the power to license and discipline physicians." The agency overseeing the NPDB opposes the bill, because it removes the access fee, which solely funds the program. The Congressional Budget Office (CBO) has yet to estimate the cost of the bill.

Chairman Bliley appealed to his committee by stating, "I implore you, don't allow certain Washington, DC, special interests to keep this critical information from consumers." "If the AMA supports access to this information at the state level, why not at the national level? Why would you want to limit the American public to a hodgepodge of systems capturing different types of information rather than one, complete consistent source that already exists? Unfortunately, this is merely another disingenuous argument made by the AMA. We have seen before that the AMA's state counterparts fight to weaken legislation at the state level to block access to this information." A comprehensive review of the hearing and legislative developments on H.R. 5122 are available at http://www.house.gov/commerce.

4) The Child Passenger Protection Act (S. 2070)

Sponsored by Sen. Peter Fitzgerald (R-IL) and Sen. Rick Santorum (R-PA), the Child Passenger Protection Act (S. 2070) was marked-up in the Senate Commerce Committee this week. Sen. John McCain (R-AZ), chairman of the committee, adopted all of ACEP's suggested changes in his mark. The bill requires the National Highway Traffic Safety Administration to issue new regulations for child safety seats and update the seat standards. The current standards have remained unchanged and use a 1978 bench seat car model for crash tests. The new rule making will mandate side-impact protection for safety seats.

5) Balanced Budget Refinement Act of 2000

The Balanced Budget Refinement Act of 2000, also known as the BBA "giveback" bill, provides funds to health care providers hardest hit by the Balanced Budget Act of 1997. The $21 billion White House version of the legislation provides assistance to hospitals, Medicare+Choice, skilled nursing facilities, and home health organizations. Senate Republicans proposed $40-50 billion, but have yet to determine how to distribute the funds among the provider groups. Another draft by Sen. Tom Daschle (D-SD) totals $110 billion. It is likely that GOP Leadership will decide on an allocation total for the bill, review project allotments, and distribute funds among those offered to achieve the total goal.

The Practice Expense Coalition, a group led by the American College of Cardiology and the AMA proposed an amendment to the BBA of 1997, which would provide a 3 year moratorium on full implementation of resource-based payments for physician practice expenses-a provision which should help emergency physicians. The CBO has estimated this amendment to cost $2.8 billion. ACEP and the AMA have been working to improve the sustained growth rate (SGR). The Congressional Budget Office has not estimated the cost for this amendment. In addition, Sen. Max Baucus (D-MT) is working with Senate Republicans to include his bill-S. 3035 Health Care Safety Net Oversight Act of 2000 (SNOPAC) in the "giveback" bill.

REGULATORY UPDATE

1) HCFA Administrator Announces Resignation

HCFA Administrator Nancy-Ann Min DeParle recently announced that she will be leaving the agency to become a fellow at the Institute of Politics and Interfaculty Health Policy Forum at Harvard University's Kennedy School of Government, beginning October 1. Ms. DeParle has been HCFA Administrator for almost three years. Michael Hash, HCFA's current Deputy Administrator, will assume the role of Acting Administrator.

2) HCFA Releases Proposed Ambulance Fee Schedule

On September 12, the Health Care Financing Administration published a proposed rule in the Federal Register, establishing a Medicare fee schedule for ambulance services. An agreement on a number of issues, reached by a negotiated rulemaking committee in February, was the basis for the proposed rule. Negotiated rulemaking committee members, including ACEP, will not be able to submit negative comments on areas of the rule that were part of the committee agreement. However, members will be permitted to comment on issues in the rule that were outside the scope of the committee's agreement or on areas that appear to be inconsistent with the committee's agreement.

Implementation of the fee schedule is scheduled to be begin on January 1, 2001, with a blending of the new schedule with the current system. Implementation is scheduled to begin as 20 percent fee schedule payment/80 percent current payment; increase to 50 percent fee schedule payment/50 percent current payment in the second year; increase to 80 percent fee schedule payment/20 percent current payment in the third year, and move to 100 percent fee schedule payment in the fourth year. HCFA estimates that in calendar year 2001, $17 million in total revenue would be redistributed from providers and suppliers in urban areas to those in rural areas. In addition, $7 million in total revenue would be shifted from ground service to air service.

3) PPAC Hears Concerns Regarding E/M Guidelines

On September 11-12, HCFA's Practicing Physicians Advisory Council (PPAC) heard testimony from a number of organizations regarding the Agency's draft evaluation and management documentation guidelines that were released in June. ACEP submitted written comments to HCFA in August, and Peter Sawchuk, MD, testified at the PPAC meeting on behalf of ACEP. Concerns were raised regarding HCFA's plans to develop specialty-specific vignettes for multi-system exams, single system exams and medical decision making. In addition, witnesses voiced concerns regarding issues related to HCFA's proposed pilot studies, including whether "immunity" would be granted for volunteers in the studies.

Consistent with ACEP's recommendation, PPAC recommended that HCFA reinstate the history caveat that would address the problems associated with documentation of history when emergency physicians are unable to obtain a sufficient patient history.

4) HHS Issues Guidance for Providers Regarding Patients with Limited English Skills

In late August, the Department of Health and Human Services published guidance in the Federal Register regarding assisting patients with limited English skills. The guidance, "Title VI Prohibition Against National Origin Discrimination as it Affects Persons with Limited English Proficiency," was issued consistent with an Executive Order signed by President Clinton in early August regarding people with limited English skills. The guidance outlines the legal responsibilities of providers who received federal funds from HHS related to these patients. The guidance document is available on the HHS' web site at: http://www.hhs.gov/ocr/lep.