Medicare regulatory relief gaining momentum in Congress

Paperwork reduction bills could pass a House vote with co-sponsors alone.

By Markian Hawryluk, amednews staff. Sept. 10, 2001.

Washington -- Prospects are good for passage of a Medicare regulatory relief measure this fall, according to health care policy analysts.

As Congress returns from its August hiatus, key lawmakers have expressed commitments to act upon legislation that would streamline Medicare regulations for physicians and others, strengthen due process rights, and provide for more effective education and guidance.

Different strokes
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The Medicare Education and Regulatory Fairness Act, backed by the AMA and other health care groups, has attracted 237 co-sponsors in the House and 37 co-sponsors in the Senate.

"The AMA is optimistic that something will come out of Congress to help decrease the administrative burden physicians are under to try to provide health care to Medicare beneficiaries," said Jim Rohack, MD, an AMA trustee and a cardiologist practicing in Temple, Texas. "We're encouraged because the administration has indicated that it wants to keep health care dollars to take care of patients and not unnecessary paper shuffling and waste of those precious resources."

The large number of Senate and House co-sponsors indicates "that there is momentum to get something done," he added.

The idea of regulatory relief has garnered support from the chairs of the committees that deal with Medicare issues -- Senate Finance, House Ways and Means, and House Energy and Commerce.

A representative of Sen. Frank Murkowski (R, Alaska), MERFA's sponsor, said the senator was working with Senate Finance Committee leaders to include the regulatory relief measure within the context of a broader Medicare reform package this fall. That package is likely to include long-term Medicare reform proposals, as well as an outpatient prescription drug benefit. The committee was still working on finalizing the measure in the final week of August.

Capitol Hill insiders, however, say the drug benefit debate could be highly contested, particularly as projections of the budget surplus for 2002 dwindle. Rancor over the drug benefit could threaten passage of other reforms, despite widespread support. A freestanding regulatory relief bill may have a better shot at passage.

An alternative bill

On the other side of the Capitol, the House Ways and Means Committee will consider a bill introduced by Rep. Nancy Johnson (R, Conn.), chair of the committee's health subcommittee. Johnson's bill is based on MERFA and addresses virtually the same issues, although sometimes with a different approach.

For example, where MERFA sets out specific time frames for publishing final Medicare rules or responding to physician inquiries, the Johnson bill directs the Dept. of Health and Human Services to create an appropriate schedule. And where MERFA requires contractors to provide timely guidance on which physicians and providers can rely, the Johnson bill would create a toll-free hot line for inquiries, create a small technical assistance demonstration program and appoint a Medicare ombudsman for physicians and providers.

Dr. Rohack said that although the AMA is happy with many of the provisions of the Johnson bill, it still has concerns over its provider appeals process and protections from extrapolation of overpayments from a small amount of claims.

The House Committee on Energy and Commerce is expected to introduce its own stand-alone regulatory relief package that could be passed independently or as part of a larger Medicare reform bill.

A group of lawmakers, led by House Commerce Chair Billy Tauzin (R, La.), wrote HHS Secretary Tommy Thompson to urge administrative reforms that could be implemented without Congress' involvement.

"Clearly, a combination of administrative reforms and legislative changes are necessary to update Medicare's traditional system so that it can effectively meet the needs of the beneficiaries and providers in the years to come," Tauzin said at a July hearing.

Thompson has pledged that the Centers for Medicare & Medicaid Services will conduct a "top to bottom review" looking for opportunities to streamline regulations and announced listening sessions across the country focusing on potential reforms.

"Needed relief in regulation and oversight, including some bipartisan proposals from members of Congress, should be implemented," Thompson said. "This will allow providers to spend more time and effort on patient care and less on paperwork and unexpected and complex rule changes."

Although administrative action to ease the regulatory burden on doctors would be welcomed, many physicians believe that only legislation will ensure long-term regulatory relief.

Change of heart

The main concerns over MERFA and regulatory relief seem to come from lawmakers wary of opening up Medicare to potential fraud and abuse. Sen. Chuck Grassley (R, Iowa) and Rep. Pete Stark (D, Calif.) were initially unswayed by physician and provider claims of overregulation. In a March hearing on MERFA, Stark questioned whether doctors were as hamstrung by regulation as they indicated, referring to doctors as "poor overburdened physicians."

By August, Stark was firmly behind regulatory relief, signing on as a co-sponsor of the Johnson bill.

Stark may have been convinced by a General Accounting Office report, issued in response to a request by Grassley and Senate Finance Committee Chair Max Baucus (D, Mont.). It examines the potential impact of MERFA on Medicare anti-fraud measures.

The GAO report was generally supportive of physician claims about the regulatory burden and provided several options for ensuring relief measures would not impact anti-fraud efforts.

ADDITIONAL INFORMATION:

Different strokes

The Medicare regulatory reform bill sponsored by Rep. Nancy Johnson (R, Conn.) tackles many of the same issues as the Medicare Education and Regulatory Fairness Act, but with slight differences.

Time frame

Johnson: The government must establish a regular timeline for publication of final regulations.
MERFA: The government must issue a final rule within one year of publishing an interim final rule.

Physician inquiries

Johnson: Contractors must respond to physician inquiries in a clear, concise and accurate manner, and create a toll-free telephone number for billing and coding information.
MERFA: Physicians could submit billing and documentation questions to carriers and receive a response within 30 days.

Prepayment review

Johnson: Contractors may conduct random prepayment review only to develop contractorwide or programwide claims payment error rates.
MERFA: Carriers cannot demand additional records or documentation prior to paying a claim, absent cause.

Extrapolation

Johnson: Contractors may not use extrapolation unless there is a sustained or high level of payment error, or educational interventions have failed to correct the error.
MERFA: Extrapolation of alleged overpayment amounts to other non-audited claims would not occur the first time a physician was assessed an alleged overpayment.

Weblink

GAO report "Regulatory Issues for Medicare Providers," examining the Medicare Education and Regulatory Fairness Act (GAO-01-802R), June 11 (http://www.access.gpo.gov/su_docs/aces/aces160.shtml)