Congress revisits regulatory relief bill

Medicare paperwork legislation needs reshuffling as the Bush administration makes progress on reforms.

By Markian Hawryluk, amednews staff. March 10, 2003.

Washington -- Lawmakers are hoping the third time will be the charm in their efforts to pass regulatory relief for physicians and other Medicare players. The House has twice passed a set of paperwork reduction measures only to see them die in the Senate.

This year, with Medicare reform and an outpatient prescription drug benefit again hot issues, key members of Congress are trying to push through changes that will help keep physicians in their exam rooms, rather than at their desks. In the meantime, the Bush administration is not waiting for Congress to pass the legislation and has already adopted many of the bill's measures on its own.

Unfinished business
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In February, House Ways and Means health subcommittee Chair Nancy Johnson (R, Conn.) and ranking member Fortney "Pete" Stark (D, Calif.) reintroduced the Medicare Regulatory and Contracting Reform Act that was passed last year.

"Good health care is about patients, not paperwork. America's physicians must be freed from the flood of forms," Johnson said. "This major legislation proposes concrete steps to rein in the demands Washington imposes on providers, while ensuring that Medicare continues to meet the needs of America's seniors."

Johnson said the bill was a start and not an end to the process and that she was committed to passing a strong regulatory reform package this year. The bill is likely to undergo some revisions to trim those measures that the Centers for Medicare & Medicaid Services has already implemented without congressional direction.

At a February hearing of the health subcommittee, CMS Administrator Tom Scully cited a number of the bill's provisions he believes are no longer needed. For example, the legislation calls for consolidated publication of regulations, but CMS already publishes regulations once a month and provides a quarterly listing of new rules published in the last quarter or expected in the next quarter. The agency also offers a subscriber service that sends automatic updates to the Quarterly Provider Update.

There are 14,000 pages of Medicare regulations.

"Now, instead of providers hiring regulatory experts to comb through thousands of pages of the Federal Register every day, they can simply subscribe and receive updates as they occur," Scully said.

Additionally, since May 2000, CMS has required contractors to provide general written responses to specific physician inquiries within 45 business days. The agency currently limits the use of prepayment reviews and has initiated an error rate testing program for contractors. All of those measures are also in the bill.

Other provisions in the legislation were addressed by the Advisory Committee on Regulatory Reform established in 2000 by Health and Human Services Secretary Tommy Thompson. CMS adopted many of the panel recommendations on the Emergency Medical Treatment and Active Labor Act in a proposed rule issued last year. A final rule on those changes is expected soon.

According to Michael Carius, MD, immediate past president of the American College of Emergency Physicians, those changes represented real progress, but more is needed.

"We are generally pleased with most of the commonsense proposals that clarify and refine definitions and demonstrate CMS' efforts to respond to physician and hospital concerns regarding compliance," Dr. Carius said. "[The regulatory reform bill] would be largely complementary to CMS' efforts, and passage would improve the physician practice environment."

HHS has implemented 30 of the regulatory reform panel's 250 recommendations and has established an internal work group to consider what other suggestions could be adopted. Several recommendations would require congressional approval.

AMA says reform still a must

While the AMA praised the administration's actions and the work of the regulatory reform committee, the group warned that physicians still face an enormous regulatory burden.

"The AMA continues to hear from physicians regarding onerous audits and overpayment demands," said AMA board Chair J. Edward Hill, MD. "Many Medicare carriers simply have not altered their overpayment audit practices related to extrapolation, appeals and repayment of alleged overpayments." Extrapolation is the practice of reviewing a small number of claims and extrapolating the findings to determine overall overpayments.

Dr. Hill said Congress should impose uniform standards on carriers to ensure that doctors are not denied due process rights during overpayment audits. He also questioned whether limits on extrapolation, as reported by the General Accounting Office in May 2002, are universal. "This reduction has not been uniform or permanent, nor has it occurred at the consent settlement level," Dr. Hill said.

Contractors propose consent settlements after auditing a small sample of claims. Physicians can either agree to pay an extrapolated amount or submit to a statistically valid audit. The AMA has urged CMS to allow physicians to submit additional data to support the validity of the sample claims without having to opt for a full audit. The reform legislation would allow this.

The bill also would permit physicians to rely on carrier guidance when audited. "Physicians have expressed concern that they face punitive overpayment demands even when they adhere to advice given to them by their carriers, and that carriers are unwilling to provide their names so that physicians can contact them to follow up on information that has been provided," Dr. Hill said.

The bill has bipartisan support in the House, largely due to compromise positions. While doctor groups will try to add provisions to the bill, some lawmakers, including Stark, are opposed to eliminating any of the 14,000 pages of rules currently on the books.

"If we've got $14 billion worth of fraudulent payments a year, every page you throw out is costing $100,000 to the government," Stark said at the hearing. "So I say let's keep them but let's enforce some of the rules."

ADDITIONAL INFORMATION:

Unfinished business

The Medicare Regulatory and Contracting Reform Act contains a number of provisions that have yet to be addressed by Medicare. It would:

Provide appeals hearings for physicians denied enrollment in Medicare.
Require pilot testing of any new evaluation and management guidelines.
Prohibit retroactive application of new regulations.
Ensure that physicians can rely on carriers' guidance when audited.
Limit extrapolation of overpayments to instances of high error rates and failed educational efforts.

Weblink

Thomas, the federal legislative information service, for bill summary, status and full text of the Medicare Regulatory and Contracting Reform Act of 2003 (HR 810) (http://thomas.loc.gov/)